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367 U.S.

568
81 S.Ct. 1860
6 L.Ed.2d 1037

Arthur CULOMBE, Petitioner,


v.
CONNECTICUT.
No. 161.
Argued Jan. 19, 1961.
Decided June 19, 1961.

Mr. Alexander A. Goldfarb, Hartford, Conn., for petitioner.


Mr. John D. LaBelle, Manchester, Conn., for respondent.
Mr. Justice FRANKFURTER announced the judgment of the Court, and
an opinion in which Mr. Justice STEWART joins.

Once again the Court is confronted with the painful duty of sitting in judgment
on a State's conviction for murder, after a jury's verdict was found flawless by
the State's highest court, in order to determine whether the defendant's
confessions, decisive for the conviction, were admitted into evidence in
accordance with the standards for admissibility demanded by the Due Process
Clause of the Fourteenth Amendment. This recurring problem touching the
administration of criminal justice by the States presents in an aggravated form
in this case the anxious task of reconciling the responsibility of the police for
ferreting out crime with the right of the criminal defendant, however guilty, to
be tried according to constitutional requirements.

On December 15, 1956, the dead bodies of two men were found in Kurp's
Gasoline Station in New Britain, Connecticut. Edward J. Kurpiewski, the
proprietor, was found in the boiler room with a bullet in his head. Daniel J.
Janowski, a customer, was found in the men's toilet room shot twice in the
head. Parked at the pumps in front of the station was Janowski's car. In it was
Janowski's daughter, physically unharmed. She was the only surviving
eyewitness of what had happened at the station. She was eighteen months old.

The Krup's affair was one in a series of holdups and holdup killings that
terrified the operators of gasoline stations, package stores and small shops
throughout the environing Connecticut area. Newspapers and radio and
television broadcasters reported each fresh depredation of the 'mad killers.' At
Hartford, the State Police were at work investigating the crimes, apparently
with little evidence to go on. At the scene of the killings of Kurpiewski and
Janowski no physical clues were discovered.1 The bullet slugs removed from
the brains of the two victims were split and damaged.

In the last week of February 1957, for reasons which do not appear in this
record, suspicion in connection with at least two of the holdups under
investigation, holdups of a country store in Coventry and of a package store in
Rocky Hill, focused on two friends, Arthur Culombe and Joseph Taborsky. On
the afternoon of February 23, the two were accosted by teams of officers and
asked to come to State Police Headquarters. They were never again out of
police custody. In the Headquarters' interrogation room and elsewhere, they
were questioned about the Coventry and Rocky Hill holdups, Kurp's, and other
matters. Within ten days Culombe had five times confessed orally to
participation in the Kurp's Gasoline Station affaironce re-enacting the holdup
for the police and had signed three typed statements incriminating himself and
Taborsky in the Kurp's killings. Taborsky also confessed.

The two were indicted and tried jointly for murder in the first degree before a
jury in the Superior Court at Hartford. Certain of their oral and written
statements were permitted to go to the jury over their timely objections that
these had been extracted from them by police methods which made the
confessions inadmissible consistently with the Fourteenth Amendment. Both
men were convicted of first-degree murder and their convictions affirmed by
the Supreme Court of Errors. 147 Conn. 194, 158 A.2d 239. Only Culombe
sought review by this Court. Because his petition for certiorari presented
serious questions concerning the limitations imposed by the Federal Due
Process Clause upon the investigative activities of state criminal law
enforcement officials, we issued the writ. 363 U.S. 826, 80 S.Ct. 1604, 4
L.Ed.2d 1522.

I.
6

The occasion which in December 1956 confronted the Connecticut State Police
with two corpses and an infant as their sole informants to a crime of
community-disturbing violence is not a rare one. Despite modern advances in
the technology of crime detection, offenses frequently occur about which things
cannot be made to speak. And where there cannot be found innocent human

witnesses to such offenses, nothing remains if police investigation is not to be


balked before it has fairly begunbut to seek out possibly guilty witnesses and
ask them questions, witnesses, that is, who are suspected of knowing something
about the offense precisely because they are suspected of implication in it.
7

The questions which these suspected witnesses are asked may serve to clear
them. They may serve, directly or indirectly, to lead the police to other suspects
than the persons questioned. Or they may become the means by which the
persons questioned are themselves made to furnish proofs which will
eventually send them to prison or death. In any event, whatever its outcome,
such questioning is often indispensable to crime detection. Its compelling
necessity has been judicially recognized as its sufficient justification, even in a
society which, like ours, stands strongly and constitutionally committed to the
principle that persons accused of crime cannot be made to convict themselves
out of their own mouths.

But persons who are suspected of crime will not always be unreluctant to
answer questions put by the police. Since under the procedures of AngloAmerican criminal justice they cannot be constrained by legal process to give
answers which incriminate them, the police have resorted to other means to
unbend their reluctance, lest criminal investigation founder.2 Kindness,
cajolery, entreaty deception, persistent cross-questioning, even physical
brutality have been used to this end.3 In the United States, 'interrogation' has
become a police technique,4 and detention for purposes of interrogation a
common, although generally unlawful, practice.5 Crime detection officials,
finding that if their suspects are kept under tight police control during
questioning they are less i kely to be distracted, less likely to be recalcitrant
and, of course, less likely to make off and escape entirely, not infrequently take
such suspects into custody for 'investigation.'

This practice has its manifest evils and dangers. Persons subjected to it are torn
from the reliances of their daily existence and held at h e mercy of those whose
job it isif such persons have committed crimes, as it is supposed they have
to prosecute them. They are deprived of freedom without a proper judicial
tribunal having found them guilty, without a proper judicial tribunal having
found even that there is probable cause to believe that they may be guilty.6
What actually happens to them behind the closed door of the interrogation
room is difficult if not impossible to ascertain. Certainly, if through excess of
zeal or aggressive impatience or flaring up of temper in the face of obstinate
silence a prisoner is abused,7 he is faced with the task of overcoming, by his
lone testimony, solemn official denials.8 The prisoner knows thisknows that
no friendly or disinterested witness is presentand the knowledge may itself

induce fear.9 But, in any case, the risk is great that the police will accomplish
behind their closed door precisely what the demands of our legal order forbid:
make a suspect the unwilling collaborator in establishing his guilt. This they
may accomplish not only with ropes and a rubber hose, not only by relay
questioning persistently, insistently subjugating a tired mind, but by subtler
devices.
10

In the police station a prisoner is surrounded by known hostile forces. He is


disoriented from the world he knows and in which he finds support. 10 He is
subject to coercing impingements, undermining even if not obvious pressures
of every variety. In such an atmosphere, questioning that is long continued
even if it is only repeated at intervals, never protracted to the point of physical
exhaustioninevitably suggests that the questioner has a right to, and expects,
an answer.11 This is so, certainly, when the prisoner has never been told that he
need not answer and when, because his commitment to custody seems to be at
the will of his questioners, he has every reason to believe that he will be held
and interrogated until he speaks.12

11

However, a confession made by a person in custody is not always the result of


an overborne will. The police may be midwife to a declaration naturally born of
remorse, or relief, or desperation, or calculation. If that is so, if the 'suction
process'13 has not been at the prisoner and drained his capacity for freedom of
choice, does not the awful responsibility of the police for maintaining the
peaceful order of society justify the means which they have employed? It will
not do to forget, as Sir Patrick (now Lord Justice) Devlin has put it, that 'The
least criticism of police methods of interrogation deserves to be most carefully
weighed because the evidence which such interrogation produces is often
decisive; the high degree of proof which the English law requiresproof
beyond reasonable doubtoften could not be achieved by the prosecution
without the assistance of the accused's own statement.' 14 Yet even if one cannot
adopt 'an undiscriminating hostility to mere interrogation * * * without unduly
fettering the States in protecting society from the criminal,'15 there remain the
questions: When, applied to what practices, is a judgment of impermissibility
drawn from the fundamental conceptions of Anglo-American accusatorial
process 'undiscriminating'? What are the characteristics of the 'mere
interrogation' which is allowable consistently with those conceptions?

II.
12

The problem which must be faced in fair recognition of the States' basic
security and of the States' observance of their own standards, apart from the
sanctions of the Fourteenth Amendment, in bringing the guilty to justice is that

which Mr. Justice Jackson described in dealing with three cases before us:
13

'In each case police were confronted with one or more brutal murders which the
authorities were under the highest duty to solve. Each of these murders was
unwitnessed, and the only positive knowledge on which a solution could be
based was possessed by the killer. In each there was reasonable ground to
suspect an individual but not enough legal evidence to charge him with guilt. In
each the police attempted to meet the situation by taking the suspect into
custody and interrogating him. * * *

14

'* * * (N)o one suggests that any course held promise of solution of these
murders other than to take the suspect into custody for questioning. The
alternative was to close the books on the crime and forget it, with the suspect at
large. This is a grave choice for a society in which two-thirds of the murders
already are closed out as insoluble.

15

'* * * The suspect neither had nor was advised of his right to get counsel. This
presents a real dilemma in a free society. To subject one without counsel to
questioning which may and is intended to convict him, is a real peril to
individual freedom. To bring in a lawyer means a real peril to solution of the
crime, because, under our adversary system, he deems that his sole duty is to
protect his clientguilty or innocentand that in such a capacity he owes no
duty whatever to help society solve its crime problem. Under this conception of
criminal procedure, any lawyer worth his salt will tell the suspect in no
uncertain terms to make no statement to police under any circumstances.' Watts
v. State of Indiana, 338 U.S. 49, 57, 5859, 69 S.Ct. 1347, 1357, 93 L.Ed.
1801.

16

The nature and components of this problem, concerning as it does liberty and
security, had better be overtly and critically examined than smothered by
unanalyzed assumptions. That judges who agree on relatively legal
considerations may disagree in their application to the same set of
circumstances does not weaken the validity of those considerations nor
minimize their importance. Differences in the appraisal of the same facts is a
common-place of adjudication.

17

The critical elements of the problem may be quickly isolated in light of what
has already been said. Its first pole is the recognition that 'Questioning suspects
is indispensable in law enforcement.'16 As the Supreme Court of New Jersey
put it recently: 'the public interest requires that interrogation, and that at a
police station, not completely be forbidden, so long as it is conducted fairly,

reasonably, within proper limits and with full regard to the rights of those being
questioned.'17 But if it is once admitted that questioning of suspects is
permissible, whatever reasonable means are needed to make the questioning
effective must also be conceded to the police. Often prolongation of the
interrogation period will be essential, so that a suspect's story can be checked
and, if it proves untrue, he can be confronted with the lie; if true, released
without charge.18 Often the place of questioning will have to be a police
interrogation room, both because it is important to assure the proper
atmosphere of privacy and non-distraction if questioning is to be made
productive,19 and because, where a suspect is questioned but not taken into
custody, heand in some cases his associatesmay take prompt warning and
flee the premises. Legal counsel for the suspect will generally prove a thorough
obstruction to the investigation. 20 Indeed, even to inform the suspect of his
legal right to keep silent will prove an obstruction. Whatever fortifies the
suspect ors econds him in his capacity to keep his mouth closed is a potential
obstacle to the solution of crime.
18

At the other pole is a cluster of convictions each expressive, in a different


manifestation, of the basic notion that the terrible engine of the criminal law is
not to be used to overreach individuals who stand helpless against it.21 Among
these are the notions that men are not to be imprisoned at the unfettered will of
their prosecutors, nor subjected to physical brutality by officials charged with
the investigation of crime. Cardinal among them, also, is the conviction, basic
to our legal order, that men are not to be exploited for the information
necessary to condemn them before the law, that, in Hawkins' words, a prisoner
is not 'to be made the deluded instrument of his own conviction.' 2 Hawkins,
Pleas of the Crown (8th ed. 1824), 595. This principle, branded into the
consciousness of our civilization by the memory of the secret inquisitions,
sometimes practiced with torture, which were borrowed briefly from the
continent during the era of the Star Chamber, 22 was well known to those who
established the American governments.23 Its essence is the requirement that the
State which proposes to convict and punish an individual produce the evidence
against him by the independent labor of its officers, not by the simple, cruel
expedient of forcing it from his own lips. See Blackburn v. State of Alabama,
361 U.S. 199, 206207, 80 S.Ct. 274, 279280, 4 L.Ed.2d 242; Chambers v.
State of Florida, 309 U.S. 227, 235238, 60 S.Ct. 472, 476477, 84 L.Ed.
716. Quite early the English courts acknowledged the barrier that, in this
regard, set off the accusatorial system from the inquisitorial.24 And soon they
came to enforce it by the rigorous demand that an extra-judicial confession, if it
was to be offered in evidence against a man, must be the product of his own
free choice.25 So fundamental, historically, is this concept, that the Fourteenth
Amendment, as enforced by our decisions, applied it as a limitation upon the

criminal procedure of the States. Consistently with that Amendment neither the
body nor mind of an accused may be twisted until he breaks. Brown v. State of
Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Leyra v. Denno, 347
U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.
19

Recognizing the need to protect criminal suspects from all of the dangers which
are to be feared when the process of police interrogation is entirely unleashed,
legislatures have enacted several kinds of laws designed to curb the worst
excesses of the investigative activity of the police. The most widespread of
these are the ubiquitous statutes requiring the prompt taking of persons arrested
before a judicial officer;26 these are responsive both to the fear of administrative
detention without probable cause and to the known risk of opportunity for
third-degree practices which is allowed by delayed judicial examination.27
Other statutes outlaw the sweating, beating or imprisonment of suspects for the
purpose of extorting confessions,28 or assure imprisoned suspects the right to
communicate with friends or legal counsel.29 But because it is the courts which
are charged, in the ultimate, both with the enforcement of the criminal law and
with safeguarding the criminal defendant's rights to procedures consistent with
fundamental fairness, the problem of reconciling society's need for police
interrogation with society's need for protection from the possible abuses of
police interrogation decisively devolves upon the courts, particularly in
connection with the rules of evidence which regulate the admissibility of
extrajudicial confessions. Under our federal system this task, with respect to
local crimes, is, of course, primarily the responsibility of the state courts. The
Fourteenth Amendment, however, limits their freedom in this regard. It subjects
their broad powers to a limited, but searching, federal review and places upon
this Court the obligationwith all the deference and caution which exercise of
such a competence demandsto adjudicate what due process of law requires
by way of restricting the state courts in their use of the products of police
interrogation.

20

That judgment is what is at issue in this case.

III.
21

The dilemma posed by police interrogation of suspects in custody and the


judicial use of interrogated confessions to convict their makers cannot be
resolved simply by wholly subordinating one set of opposing considerations to
the other. The argument that without such interrogation it is often impossible to
close the hiatus between suspicion and proof, especially in cases involving
professional criminals, is often pressed in quarters responsible and not
unfeeling. It is the same argument that was once invoked to support the lash

and the rack.30 Where it has been put to this Court in its extreme form, as
justifying the all-night grilling of prisoners under circumstances of sustained,
week-long terror, we have rejected it. Chambers v. State of Florida, 309 U.S.
227, 240241, 60 S.Ct. 472, 478479, 84 L.Ed. 716. 'The Constitution
proscribes such lawless means irrespective of the end.'
22

But asking questions is not the lash or the rack, and to say that the argument ex
necessitate is not the short answer to every situation in which it is invoked is
not to dismiss it altogether. Due process does not demand of the States, in their
administration of the criminal law, standards of favor to the accused which our
civilization, in its most sensitive expression, has never found it practical to
adopt. The principle of the Indian Evidence Act which excludes all confessions
made to the police or by persons while they are detained by the police31 has
never been accepted in England32 or in this country.33 Nor has the principle of
the Scottish cases barring the use in evidence of a defendant's incriminating
responses to police questioning at any time after suspicion has focused on
him.34 Rather, this Court (in cases coming here from the lower federal courts),35
the courts of England36 and of Canada,37 and the courts of all the States38 have
agreed in holding permissible the receipt of confessions secured by the
questioning of suspects in custody by crime-detection officials. And, in a long
series of cases, this Court has held that the Fourteenth Amendment does not
prohibit a State from such detention and examination of a suspect as, under all
the circumstances, is found not to be coercive. See Lisenba v. People of State of
California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Lyons v. State of
Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Gallegos v. State of
Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Brown v. Allen, 344 U.S.
443, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. People of State of New York, 346
U.S. 156, 184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522; Crooker v. State of
California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La Gay,
357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523. And see Townsend v. Burke, 334
U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690.

23

It is true that the English courts have long tended severely to discourage law
enforcement officers from asking questions of persons under arrest or who are
so far suspected that their arrest is imminent. The judges have many times
deprecated the practice even while receiving in evidence the confessions it has
produced. 39 The manual known as the Judges' Rules, first issued in 1912,
augmented in 1918, and clarified by a Home Office Circular published in 1930,
embodies the attitude of the English Bench in this regard.40 While encouraging
police officers to put questions to all possibly informed persons, whether or not
suspected, during the early phase of their investigation which aims at
discovering who committed the offense, the Rules admonish that so soon as the

officers make up their minds to charge a particular person with a crime, they
should caution him, first, that he need say nothing and, second, that what he
says may be used in evidence, before questioning him or questioning him
further. Persons in custody are not to be questioned, except that when a
prisoner, having been cautioned, volunteers a statement, such questions may be
asked as are fairly needed to remove ambiguities, so long as the questioner does
not seek to elicit information beyond the scope of what the prisoner has offered.
If two or more persons are charged with an offense and the police have taken
the statement of one of them, copies may be furnished to the others but nothing
should be said or done to invite a reply.41 The Judges' Rules are not 'law' in the
sense that any violation of them by a questioning officer eo ipso renders
inadmissible in evidence whatever incriminatory responses he may obtain.42
But it is clear that the judges presiding at criminal trials have broad discretion
to exclude any confession procured by methods which offend against the letter
or the spirit of the Rules,43 and violations have in a few instances seemed to
influence, although not to control, the judgment of the Court of Criminal
Appeal in quashing convictions.44 For these reasons, and because of the respect
which attaches to the Rules in view of their source, they have doubtless had a
pervasive effect upon actual police practices, and they appear to be regarded by
the constabulary as am ore or less infrangible code.45 Inasmuch as the same
conception is shared by counsel for the Crown, the contemporary English
reports do not disclose cases involving the sort of claims of coercion so
frequently litigated in our courts. It may well be that their circurstances seldom
arise;46 when they do, the Crown does not offer the confession; if it were
offeredin a case, for example, where several hours of questioning could be
shownthe trial judge would almost certainly exclude it.47
24

This principle by which the English trial judges have supplemented the
traditional Anglo-American rule that confessions are admissible if voluntary,
by the exercise of a discretion to exclude incriminating statements procured by
methods deemed oppressive although not deemed fundamentally inconsistent
with accusatorial criminal procedure,48 has not been imitated in the United
States.49 In 1943 this Court, in McNabb v. United States, 318 U.S. 332, 63 S.Ct.
608, 87 L.Ed. 819, drew upon its supervisory authority over the administration
of federal criminal justice to inaugurate an exclusionary practice considerably
less stringent than the English. That practice requires the exclusion of any
confession 'made during illegal detention due to failure promptly to carry a
prisoner before a committing magistrate, whether or not the 'confession is the
result of torture, physical or psychological * * *." Upshaw v. United States, 335
U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100.50 Its purpose is to give effect to
the requirement that persons arrested be brought without unnecessary delay
before a judicial officera safeguard which our society, like other civilized

societies, has found essential to the protection of personal liberty.51


25

The McNabb case was an innovation which derived from our concern and
responsibility for fair modes of criminal proceeding in the federal courts.52 The
States, in the large, have not adopted a similar exclusionary principle.53 And
although we adhere unreservedly to McNabb for federal criminal cases, we
have not extended its rule to state prosecutions as a requirement of the
Fourteenth Amendment. Gallegos v. State of Nebraska, 342 U.S. 55, 6364,
72 S.Ct. 141, 146147, 96 L.Ed. 86 (opinion of Reed, J.); Brown v. Allen, 344
U.S. 443, 476, 73 S.Ct. 397, 417, 97 L.Ed. 469; Stein v. People of State of New
York, 346 U.S. 156, 187188, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522; cf. Lyons
v. State of Oklahoma, 322 U.S. 596, 597598, note 2, 64 S.Ct. 1208, 1210, 88
L.Ed. 1481; Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92
L.Ed. 1690; Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 607,
96 L.Ed. 872.

26

In light of our past opinions and in light of the wide divergence of views which
men may reasonably maintain concerning the propriety of various police
investigative procedures not involving the employment of obvious brutality,
this much seems certain: It is impossible for this Court, in enforcing the
Fourteenth Amendment, to attempt precisely to delimit, or to surround with
specific, all-inclusive restrictions, the power of interrogation allowed to state
law enforcement officers in obtaining confessions. No single litmus-paper test
for constitutionally impermissible interrogation has been evolved: neither
extensive cross-questioningdeprecated by the English judges; nor undue
delay in arraignmentproscribed by McNabb; nor failure to caution a prisoner
enjoined by the Judges' Rules; nor refusal to permit communication with
friends and legal counsel at stages in the proceeding when the prisoner is still
only a suspect prohibited by several state statutes. See Lisenba v. People of
State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Crooker v. State
of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Ashdown v. State
of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443.

27

Each of these factors, in company with all of the surrounding circumstances


the duration and conditions of detention (if the confessor has been detained),
the manifest attitude of the police toward him, his physical and mental state, the
diverse pressures which sap or sustain his powers of resistance and self-control
is relevant.54 The ultimate test remains that which has been the ol y clearly
established test in Anglo-American courts for two hundred years: the test of
voluntariness. Is the confession the product of an essentially free and
unconstrained choice by its maker? If it is, if he has willed to confess, it may be
used against him. If it is not, if his will has been overborne and his capacity for

self-determination critically impaired, the use of his confession offends due


process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The
line of distinction is that at which governing self-direction is lost and
compulsion, of whatever nature or however infused, propels or helps to propel
the confession.
IV.
28

The inquiry whether, in a particular case, a confession was voluntarily or


involuntarily made involves, at the least, a three-phased process. First, there is
the business of finding the crude historical facts, the external,
'phenomenological' occurrences and events surrounding the confession. Second,
because the concept of 'voluntariness' is one which concerns a mental state,
there is the imaginative recreation, largely inferential, of internal,
'psychological' fact. Third, there is the application to this psychological fact of
standards for judgment informed by the larger legal conceptions ordinarily
characterized as rules of law but which, also, comprehend both induction from,
and anticipation of, factual circumstances.

29

In a case coming here from the highest court of a State in which review may be
had, the first of these phases is definitely determined, normally, by that court.
Determination of what happened requires assessments of the relative credibility
of witnesses whose stories, in cases involving claims of coercion, are
frequently, if indeed not almost invariably, contradictory. That ascertainment
belongs to the trier of facts before whom those witnesses actually appear,
subject to whatever corrective powers a State's appellate processes afford.

30

This means that all testimonial conflict is settled by the judgment of the state
courts. Where they have made explicit findings of fact, those findings conclude
us and form the basis of our reviewwith the one caveat, necessarily, that we
are not to be bound by findings wholly lacking support in evidence. See
Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.
Where there are no explicit findings, or in the case of lacunae among the
findings, the rejection of a federal constitutional claim by state criminal courts
applying proper constitutional standards55 resolves all conflicts in testimony
bearing on that claim against the criminal defendant. In such instances, we
consider only the uncontested portions of the record: the evidence of the
prosecution's witnesses and so much of the evidence for the defense as, fairly
read in the context of the record as a whole, remains uncontradicted. Ashcraft
v. State of Tennessee, 322 U.S. 143, 152153, 64 S.Ct. 921, 925, 88 L.Ed.
1192; Lyons v. State of Oklahoma, 322 U.S. 596, 602603, 64 S.Ct. 2 08,
1212, 88 L.Ed. 1481; Watts v. State of Indiana, 338 U.S. 49, 5052, 69 S.Ct.

1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.); Gallegos v. State of


Nebraska, 342 U.S. 55, 6062, 72 S.Ct. 141, 144145, 96 L.Ed. 86; Stein v.
People of State of New York, 346 U.S. 156, 180182, 73 S.Ct. 1077, 1090
1091, 97 L.Ed. 1522; Payne v. State of Arkansas, 356 U.S. 560, 561562, 78
S.Ct. 844, 846847, 2 L.Ed.2d 975; Thomas v. State of Arizona, 356 U.S.
390, 402403, 78 S.Ct. 885, 891892, 2 L.Ed.2d 863.
31

The second and third phases of the inquirydetermination of how the accused
reacted to the external facts, and of the legal significance of how he reacted
although distinct as a matter of abstract analysis, become in practical operation
inextricably interwoven. This is so, in part, because the concepts by which
language expresses an otherwise unrepresentable mental reality are themselves
generalizations importing preconceptions about the reality to be expressed. It is
so, also, because the apprehension of mental states is almost invariably a matter
of induction, more or less imprecise, and the margin of error which is thus
introduced into the finding of 'fact' must be accounted for in the formulation
and application of the 'rule' designed to cope with such classes of facts. The
notion of 'voluntariness' is itself an amphibian. It purports at once to describe an
internal psychic state and to characterize that state for legal purposes. Since the
characterization is the very issue 'to review which this Court sits,' Watts v. State
of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of
Frankfurter, J.), the matter of description, too, is necessarily open here. See
Lisenba v. People of State of California, 314 U.S. 219, 237238, 62 S.Ct. 280,
290, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139,
1141, 86 L.Ed. 1663; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302,
303, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401,
404, 417, 65 S.Ct. 781, 783, 789, 89 L.Ed. 1029.

32

No more restricted scope of review would suffice adequately to protect federal


constitutional rights. For the mental state of involuntariness upon which the due
process question turns can never be affirmatively established other than
circumstantially that is, by inference; and it cannot be competent to the trier of
fact to preclude our review simply by declining to draw inferences which the
historical facts compel. Great weight, of course, is to be accorded to the
inferences which are drawn by the state courts. In a dubious case, it is
appropriate, with due regard to federal-state relations, that the state court's
determination should control. But where on the uncontested external
happenings, coercive forces set in motion by state law enforcement officials are
unmistakably in action; where these forces, under all the prevailing states of
stress, are powerful enough to draw forth a confession; where, in fact, the
confession does come forth and is claimed by the defendant to have been
extorted from him; and where he has acted as a man would act who is subjected

to such an extracting processwhere this is all that appears in the recorda


State's judgment that the confession was voluntary cannot stand.
33

'* * * (I)f force has been applied, this Court does not leave to local
determination whether or not the confession was voluntary. There is torture of
mind as well as body; the will is as much af ected by fear as by force. And
there comes a point where this Court should not be ignorant as judges of what
we know as men.' Watts v. State of Indiana, supra, 338 U.S. at page 52, 69
S.Ct. at page 1349.

V.
34

We turn, then, to the uncontested historical facts as they appear in this record.
Since judgment as to legal voluntariness vel non under the Due Process Clause
is drawn from the totality of the relevant circumstances of a particular situation,
a detailed account of them is unavoidable. When Culombe's confessions were
offered by the prosecution and objected to as constitutionally inadmissible, the
Connecticut Superior Court, pursuant to the applicable Connecticut
procedure,56 excused the jury and took evidence bearing on the issue of
coercion. It later made explicit findings setting forth the facts which it credited
and deemed relevant. On the basis of these findings andinsofar as they do not
cover all aspects of the testimonyof evidence that is unconstradicted, the
following may be taken as established.57

35

In February 1957, the Connecticut State Police at Hartford were investigating a


number of criminal incidents. In connection with certain of these (other than the
Kurp's Gasoline Station killings in New Britain) it was decided on Saturday,
February 23 to have two men, Arthur Culombe and Joseph Taborsky, picked up
and viewed by witnesses. Lieutenant Rome, who was in charge of the
investigation, delegated teams of officers to go to different addresses where the
men might be located.

36

Shortly after 2 p.m., two officers accosted Culombe and Taborsky entering a
car in front of the home of the latter's mother in Hartford. They told Taborsky
that Lieutenant Rome wanted to talk to him at State Police Headquarters. They
said that this was not an arrest. Taborsky stated that he was willing to go and
Culombe drove him to Headquarters, following the officer's car. Leaving
Taborsky, Culombe immediately drove home.

37

Shortly after his arrival, at about 2:30 p.m., Sergeant Paige and another officer
came to Culombe's apartment to bring him back to Headquarters. They told

Culombe that he was not arrested, that Lieutenant Rome wanted to talk to him.
Culombe drove Sergeant Paige to Headquarters in his, Culombe's, car. From
this time, Culombe was never again out of the effective control of the police.
38

Lieutenant Rome spoke briefly to Culombe and Taborsky and asked them if
they would agree to accompany several officers to Coventry and Rocky Hill for
purposes of possible identification. They consented. Sergeant Paige and two
other officers took Culombe and Taborsky on this trip, which consumed about
three hours, between 3 and 6 p.m. In the car, Culombe was questioned
concerning his possible participation in several crimes. He was not then
regarded as under arrest. During the stops at Coventry and Rocky Hill, after
Culombe and Taborsky, t the officers' request, had entered a country store and a
package store feigning to be customers, the two men were left for brief periods
of time in the police cruiser with only Officer Griffin present. Griffin permitted
them to drink the contents of a bottle of liquor which Taborsky carried.

39

On the return to Hartford the group stopped at a diner for dinner. Culombe and
Taborsky were told to order what they wanted and ate well. At Headquarters
Culombe was questioned for an hour by Paige concerning his possession of
guns. He told Paige that he was a gun collector and had seven or eight guns at
his home which he agreed to turn over to the police. The reason Culombe
revealed this information to Paige was that the guns were registered and
Culombe knew that Paige could have traced them to him in any event.

40

Paige and another officer took Culombe to his home, where Culombe left them
in the living room and went to the bedroom. Following, they found him with
two guns. They found a clip of cartridges in a drawer which he had just closed
and six more guns in a small safe. They took these. Culombe and the second
officer left and waited together on the street near the cruiser, the officer
holding Culombe's arm, for approximately twenty minutes while Paige
remained in Culombe's apartment questioning Culombe's wife.

41

Culombe was taken back to Headquarters. Paige talked with him for a short
while, then discontinued his investigation for the night. Rome talked with
Culombe for about two hours, apparently over a three- or three-and-a-half-hour
period. The talk concerned the Kurp's killings and other matters. At this time
Culombe and Taborsky were kept in separate rooms. Rome would question one,
then the other, staying with each man until he got some bit of information that
he could have checked. During respites of questioning by Rome, Culombe
remained in the interrogation room.

42

At one point, Culombe told Rome that he wanted to see a lawyer but did not

42

At one point, Culombe told Rome that he wanted to see a lawyer but did not
give the name of any specific lawyer. Rome replied that Culombe could have
any lawyer he wanted if Culombe would tell Rome what lawyer to call. Rome
knew that Culombe, an illiterate, was unable to use the telephone directory.

43

About 10 p.m., Rome put Culombe under arrest by virtue of a Connecticut


statute permitting arrest without a warrant where the arresting officer has cause
to suspect that the person arrested has committed a felony. The statute requires
that persons so arrested be presented with reasonable promptness before the
proper authority.58 Culombe was taken to a cell at Headquarters sometime
before midnight. However, the log book in which notation is customarily made
of prisoners detained in the Headquarters cell blocks shows no entry for
Culombe Saturday night.

44

Concerning the purpose of the questioning which began on Saturday and


continued intermittently until Culombe confessed the following Wednesday,
Sergeant Paige candidly admitted that it was intended to obtain a confession if a
confession was obtainable.59 Lieutenant Rome agreed that he had kept after
Culombe until he got answers which he could prove were correct. 60 There is no
indication that at any time Culombe was warned of his right to keep silent.
Neither Paige nor anyone in Paige's hearing cautioned Culombe concerning his
constitutional rights.61

45

On Sunday, February 24, Culombe was questioned for a short time about the
New Britain killings and denied that he was involved. He was also questioned
by Paige and a Hartford detective about another robbery. The following
morning Culombe and Taborsky were driven to New Britain and, after a
substantial wait at the Detective Headquarters building, were booked for breach
of the peace at New Britain Police Headquarters. Crowds lined both sides of the
street where the stations were located. After the booking, en route back to
Hartford, the cruiser in which Culombe rode stopped at Kurp's gas station.
Rome asked Culombe if he recognized the place; Culombe said that he did not.
On Monday afternoon Culombe was again questioned at Headquarters
concerning Kurp's as well as other matters. Lieutenant Rome questioned him
for two or three hours. Sergeant Paige also questioned him for twenty minutes
or half an hour, but this appears to have been concurrent with Rome's
questioning. Culombe then confessed to the theft of certain canned goods and
made a statement about them that was reduced to writing.

46

On Tuesday, February 26, Culombe was removed from his cell to be taken to
the New Britain Police Court for presentation on the breach of the peace
charge. At that time Rome told him that he was to be brought to court and

would have an opportunity to see a lawyer. At New Britain there were again
crowds on the street, but not as heavy as Monday's.
47

The courtroom was crowded. Once in it, Culombe and Taborsky were placed in
a prisoners' pen, a wire-mesh, cage-like affair in the corner of the room.
Photographers with flashbulbs took photographs of them in the pen. The crowd
was between the pen and the judge's bench. When court convened, the two men
were presented for breach of the peace. Culombe was not required to plead. He
was not heard by the court. He was not taken out of the pen and brought before
the bench. He was not told that he might have counsel. No one informed the
judge that Culombe had previously asked to see a lawyer. At Lieutenant Rome's
suggestion, the prosecuting attorney moved for a continuance. Without Giving
Culombe an occasion to contest the motion or participate in any way in the
proceedings, the court continued the case for a week and issued a mittimus
committing Culombe to the Hartford County Jail until released by due course of
law.

48

The idea of presenting Culombe and Taborsky on charges of breach of the


peace was Rome's, in collaboration with the alternate prosecutor.62 Its purpose,
Rome testified, was 'To help me investigate some serious crimes in the state of
Connecticut.' This breach of the peace prosecution was later nolled, Culombe
having never been brought back before the Police Court because 'It wasn't
necessary.'63 In testimony admitted in Taborsky's case, Rome conceded that he
could have booked Taborsky (and hence, presumably, Culombe, since the legal
proceedings against the two men were at all stages prosecuted simultaneously)
on Sunday and presented him on Monday, but delayed because he, Rome,
wanted more time, more interrogation. Presenting the man on Monday,
although it would have been in accordance wit the Connecticut statute requiring
presentation with reasonable promptness, was not, Rome testified, 'in
accordance with good investigation.'64

49

On leaving the Police Court, and after another stop at Kurp's, Culombe was
returned to Headquarters in Hartford, where he and Taborsky were questioned
by Rome and other officers during an indeterminate period that cannot have
been more than about two hours. At 3 or 4 that afternoon, Rome visited the
Culombe home and questioned Culombe's wife for half an hour. Rome then
returned to Headquarters where, shortly thereafter, Mrs. Columbe arrived,
brought in a police cruiser by a policewoman pursuant to arrangements made
by Rome, but by her own request or, at the least, her own agreement. Her
children were with her. She spoke briefly with Rome, who asked her if she
'would go along and lay the cards on the table to her husband and see if he
wouldn't confess.'65 Mrs. Columbe was then taken to a room where, in the

presence of Rome and the policewoman, she talked to Culombe during a


quarter of an hour. The children were not in the room. Mrs. Culombe asked
Culombe if he were responsible for the New Britain killings and told him that if
he were he should tell the police the truth. Rome permitted this confrontation
because 'it is another way of getting a confession.' He admitted that he asked
Mrs. Culombe to help the police and that she did help them indirectly; that he
tried to use her as a means of securing her husband's confession.
50

After Mrs. Culombe left the room, Rome continued to question Culombe
concerning certain conversations between Culombe and Taborsky. Culombe
and Rome went to the door of the room and Rome called Culombe's thirteenyear-old daughter into the room, saying: 'Honey, come in here and * * *. You
tell me how they went into the bedroom and talkedJoe Taborsky and your
father.' There is no indication that the girl did come into the room or that she
said anything.

51

Culombe was returned to his cell. Paige came to the cell and began to ask him
questions, but Culombe was upset by the scene with his family and choked up
or sobbed and told Paige that he did not want to talk. Paige discontinued the
questioning and sat with Culombe for fifteen or twenty minutes until other
officers came to remove Culombe to the County Jail pursuant to the mittimus of
the New Britain Police Court. Paige admitted that Culombe's confrontation by
his wife had been an 'ordeal,' and Rome agreed that the prisoner was 'upset.'
Culombe was logged in at the jail between 8 and 9 that night.

52

At about 10 a.m. on Wednesday, February 27, ji l guards came to Culombe's


cell, led him to the gates of the jail, and turned him into the custody of Sergeant
Paige and several other State Police officers. Notation was made on the books
of the jail that the State Police had 'borrowed' Culombe.66 Held at Headquarters
until 1 p.m., Culombe was then brought to the interrogation room for
questioning by Paige and Detective Murphy. Paige, who was at first alone in
the room with Culombe, began by telling Culombe that Culombe had been
lying to him. He suggested that, whenever Culombe did not want to answer a
question, Culombe say 'I don't want to answer' instead of lying. Culombe
agreed, and thereupon Paige, who held a list of the crimes being investigated,
went through it questioning Culombe about his participation in each.
Answering each question, Culombe stated either that he had not been there or
that he did not want to talk about it. When Paige had gotten through the list,
Murphy, having come in, took the list over and repeated the same questions
that Culombe had answered or refused to answer for Paige. Paige left the room
for a while, then reentered. Murphy asked Culombe whether Culombe did not
want to cooperate. Culombe said that he did but that it was a hard decision to

make. Murphy asked whether Culombe was in fear of anyone and Culombe
answered that he was in fear of Taborsky. After approximately an hour and a
half, Culombe told the police that they were looking for four guns and two men
and that he had not done any killing himself. Immediately, Rome, who had
been listening to the interrogation over an intercommunication system, came
into the room and, shortly thereafter, Detective O'Brien also arrived. Culombe
agreed to show the officers where the guns would be found.67 He requested that
they travel in an unmarked car and was assured that the cruiser would carry no
identifying insignia. At about 3:30 p.m., the four officers and Culombe left
Headquarters for Culombe's home.
53

During the short ride, Rome questioned Culombe in the rear seat of the car. The
other three officers sat up front. When Culombe began to give answers which
Rome regarded as significant, Rome told O'Brien, who had been driving, to let
Murphy take the wheel. O'Brien, who was skilled at shorthand, understood that
this meant that he was to take the conversation down. He did so. In it Culombe
admitted participation in a number of crimes, including the gas station holdup.
He gave a detailed description of what happened at Kurp's in which he related
that he and Taborsky had robbed the station and that Taborsky had shot both
the proprietor and the customer. Several officers testified to the content of this
oral confession at the trial.

54

Culombe, the four officers and two police photographers entered the Culombes'
project apartment. There they found Mrs. Culombe with her younger, five-yearold daughter. After directing Rome to a cache behind the medicine cabinet
where certain weapons were concealed and to a safe compartment containing
parts of a gun, Culombe spoke with his wife in the living room in the presence
of at least one detective. He told her that he had decided to cleanse his
conscience and make a clean breast of things; that he was afraid that Taborsky
might harm her, and so he was cooperating. He also said that he wanted to save
Mrs. Culombe embarrassment as far as the neighbors were concerned.68
Leaving the apartment in the cruiser, Culombe directed the officers to a nearby
swampy area where he pointed out the location in which he had disposed of one
gun and part of another used at Kurp's. He led them to another swamp where a
raincoat said to have been worn on the night of the holdup was recovered. After
several other like stops he was taken back to Headquarters, arriving just after 6
p.m. There, in response to brief questioning in the presence of Major Remer and
Commissioner Kelly, he repeated his confessions of the early afternoon.

55

Culombe was taken to dinner. Shortly afterwards he again saw Mrs. Culombe,
who had come to Headquarters with her five-year-old. The child was sick. Mrs.
Culombe told Culombe that the child was sick and Culombe said that he

thought that the policewoman would take it to the hospital if she were asked. At
about 8 p.m., Rome, Paige O'Brien and County Detective Matus brought
Culombe to the interrogation room to reduce his several confessions to writing.
Culombe made a number of statements. The manner of taking them (no doubt
complicated by Culombe's illiteracy and his tendency to give rambling and
non-consecutive answers) was as follows: Rome questioned Culombe; Culombe
answered; Rome transposed the answer into narrative form; Culombe agreed to
it; Rome dictated the phrase or sentence to O'Brien. Each completed statement
was read to and signed by Culombe. The last of them related to the Kurp's
holdup and to another crime committed earlier on the same day. It was started
shortly before 11 p.m. and the Kurp's episode was reached at 12:30 a.m. The
Kurp's statement required a half hour to compose.
56

At the end of this four-and-a-half-hour interview, Culombe was unshaved, his


clothing a sorry sight. He was tired. He spent that night in a cell at State Police
Headquarters at his own request, apparently because he was afraid of Taborsky,
who was still lodged in the Hartford Jail. Although the confession which he
signed that night was not put in as an exhibit at the trial, it was fully laid before
the jury by the receipt in evidence of another typed paper substituted for it by
stipulation and whose contents, several officers testified, embodied the
substance of what Culombe told them shortly after midnight Wednesday.69

57

On Thursday, February 28, Rome had Culombe brought into a room where he
was talking to Taborsky. At the Lieutenant's direction, Culombe repeated his
confession. Later Culombe was presented in the Superior Courto n a charge of
first-degree murder pursuant to a bench warrant issued that morning. The
presiding judge warned Culombe of his rights to keep silent and to have
counsel. He asked Culombe if he wanted counsel and Culombe replied that he
did. Culombe said that he did not want the public defender, that he wanted
attorney McDonough but could not afford to pay for his services. The judge
promised that the court would see that Culombe had the attorney of his choice
at state expense. He then informed Culombe that the police wished to conduct
an investigation into the charges against him and had requested an order
releasing Culombe into their custody for that purpose. Asked if he was willing
to cooperate, Culombe said that he was. He was told that this might mean that
he would be taken to the sites of various crimes and again said that he was
willing to cooperate; he wanted 'to cooperate with them in any way I can.'
Accordingly, the court released Culombe to the State Police Commissioner for
the purpose of continuing the investigation.

58

At Kurp's gasoline station, Culombe re-enacted the holdup for Rome and other
officers. Later that afternoon, at Headquarters, New York detectives talked to

him concerning a New York killing. No further investigation relating to the


Connecticut crimes was conducted that day or Friday. Culombe remained in the
cell block at Headquarters, rather than at the County Jail, at his own request.
On Friday night he first saw Mr. McDonough, his court-appointed counsel, and
also saw his wife.
59

Two state psychiatrists examined Culombe during two hours on Saturday,


March 2. At 10 p.m. that evening, when Culombe was alone in his cell, he
called out to the guard assigned to the cell block and said that he wanted to
volunteer some information relating to the Kurp's holdup. The guard had not
previously spoken to Culombe during his watch except to say, 'Hi, Art,' when
he first came on duty at 6 o'clock. Culombe now narrated a new version of
what had happened at Kurp's. This was generally similar to his previous
statements except that in it he admitted that he himself had shot Kurpiewski.
The guard telephoned this information to Lieutenant Rome and Culombe
thanked him. At trial the guard related the occasion and contents of this oral
confession to the jury.

60

Sunday morning, Rome, the guard to whom Culombe had confessed the night
before, and another officer interviewed Culombe in the interrogation room. In
answer to Rome's question, Culombe said that he wanted to change the story
that he had previously given. He then said that he had shot Kurpiewski.
Following the same procedure that had been used on Wednesday night, a
detailed statement of his new version of the New Britain killings was composed
and Culombe signed it. It was received in evidence at the trial. Later in the
afternoon attorney McDonough spoke with Culombe and Rome at
Headquarters. He told Culombe not to sign any more papers or to talk to the
police. He told Rome that he did not want the police bothering Culombe further
and requested that Culombe be removed from Headquarters to the County Jail.
This was done.

61

The following day, Monday, March 4, Lieutenant Rome and Detective O'Brien
visited Culombe at the jail for half an hour. Rome brought a new typed
statement prepared by the police. This was a substantially verbatim
transcription of the document which Culombe had signed on Wednesday, but
with all references to the second, separate crime committed on December 15,
1956, deleted. Rome read the transcription to Culombe and Culombe signed it.
It was admitted at trial. Rome did not notify McDonough that Culombe's
signature was to be otained because he was worried that if he did, McDonough
would not permit Culombe to sign. Rome testified that he could 'do better
without' the attorney: Culombe 'was cooperative. * * * I needed his cooperation
and got it.'

62

The man who was thus cooperative with the police, Arthur Culombe, was a
thirty-three-year-old mental defective of the moron class with an intelligence
quotien of sixty-four70 and a mental age of nine to nine and a half years. He
was wholly illiterate. 71 Expert witnesses for the State, whose appraisal of
Culombe's mental condition was the most favorable adduced at trial, classified
him as a 'high moron' and 'a rather high grade mentally defective' and testified
that his reactions would not be the same as those of the chronological nineyear-old because his greater physical maturity and fuller background of
experience gave him a perspective that the nine-year-old would not possess.
Culombe was, however, 'handicapped.'

63

Culombe had been in mental institutions for diagnosis and treatment. He had
been in trouble with the law since he was an adolescent and had been in prison
at least twice in Connecticut since his successful escape from a Massachusetts
training school for mental defectives. During the three years immediately
preceding his arrest he had held down, and adequately performed, a freight
handler's job and had supported his wife and two young children. A psychiatrist
testifying for the State said that, although he was not a fearful man, Culombe
was suggestible and could be intimidated.72

64

Ten days after his last confession, on March 14, 1957, Culombe was indicted
for first-degree murder.

VI.
65

In the view we take of this case, only the Wednesday confessions need be
discussed.73 If these were coerced, Culombe's conviction, however
convincingly supported by other evidence, cannot stand. Malinski v. People of
State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. Stroble v. State
of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. State of
Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. On all the circumstances
of this record we are compelled to conclude that these confessions were not
voluntary. By their use petitioner was deprived of due process of law.

66

Consideration of the body of this Court's prior decision which have found
confessions coerced informs this conclusion. For although the question whether
a particular criminal defendant's will has been overborne and broken is one, it
deserves repetition, that must be decided on the peculiar, individual set of facts
of his case, it is only by a close, relevant comparison of situations that standards
which are solid and effectively enforceablenot doctrinaire or abstractcan
be evolved. In approaching these decisions, we may put aside at the outset
cases involving physical brutality,74 threats of physical brutality,75 and such

convincingly terror-arousing, and otherwise unexplainable, incidents of


interrogation as the removal of prisoners from jail at night for questioning in
secluded places,76 the shuttling of prisoners from jail to jail, at distances from
their homes, for questioning,77 the keeping of prisoners unclothed or standing
on their feet for long periods during questioning.78 No such obvious, crude
devices appear in this record. We may put aside also cases where deprivation of
sleep has been used to sap a prisoner's strength and drug him79 or where bald
disregard of his rudimentary need for food is a factor that adds to
enfeeblement.80 Culombe was not subject to wakes or starvation. We may put
aside cases stamped with the overhanging threat of the lynch mob,81 for
although it is true that Culombe saw crowds of people gathered to witness his
booking and presentation in New Britain, this circumstance must be accounted
of small significance here. There were no mobs at Hartford where he was held
securely imprisoned at State Police Headquarters.82 Finally, we may put aside
cases of gruelling, intensely unrelaxing questioning over protracted periods.83
Culombe's most extended session prior to his first confession ran three and a
half hours with substantial respites. Because all of his questioning concerned
not one but several offenses, it does not present an aspect of relentless,
constantly repeated probing designed to break concentrated resistance.
Particularly, the sustained four-and-a-half-hour interview that preceded the
Wednesday-midnight confession was almost wholly taken up with matters
other than Kurp's, and at that time, far from resisting, Culombe was wholly
cooperating with the police.
67

Similarly, our decisions in Hae y v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302,
92 L.Ed. 224, and Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274,
4 L.Ed.2d 242, are not persuasive here. Haley, a fifteen-year-old boy, was
arrested at his home and taken to a police station at midnight, where he was
questioned by relays of officers until he confessed at 5 a.m. He had seen no
friend or legal counsel during that time and he was subsequently held
incommunicado for three days. On the totality of circumstances, the Court held
his confession coerced. But Culombe was never questioned concerning one
crime for five hours. Indeed, he was never questioned during five hours at a
stretch. He was never questioned in the early morning hours. And while Haley,
whose questioning began immediately on his arrival at the station and did not
let up until he confessed, had every reason to expect that his relay interrogators
intended to keep the pace up till he broke,84 Culombe, at the time of his
confessions, had been questioned on several previous days and knew that the
sessions had not run more than a few hours. Moreover, Culombe, despite his
mental age of nine or nine and a half, cannot be viewed as a child. Expert
testimony in the record, which the Connecticut courts may have credited,
precludes the application to Culombe of standards appropriate to the adolescent

Haley.
68

Nor, without guessing, as untutored laymen and not professionally informed as


judges, about the susceptibility of a mental defective to overreaching, can we
apply to Culombe the standards controlling the case of the active psychotic,
Blackburn. The expert evidence of hallucinations, delusional ideas and
complete loss of contact with his surroundings which we found uncontradicted
in the Blackburn record has no counterpart in Culombe's. Also, Blackburn, like
Haley, confessed after a protracted questioning sessioneight or nine hours,
with a one-hour break, in Blackburn's casemore exhausting than any single
period that Culombe underwent.

69

On the other hand, what must enter our judgment about Culombe's mental
equipmentthat he is suggestible and subject to intimidationdoes not permit
us to attribute to him powers of resistance comparable to those which the Court
found possessed by the defendant Cooper in Stein v. People of State of New
York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, who haggled for terms with
the officials to whom he confessed,85 or the defendant James in Lisenba v.
People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, who
bragged immediately before his confession that there were not enough men in
the District Attorney's office to make him talk. Culombe was detained in the
effective custody of the police for four nights and a substantial portion of five
days before he confessed. During that time he was questioned so repeatedly,
although intermittently, that he cannot but have been made to believe what the
police hardly denied, that the police wanted answers and were determined to
get them. 86 Other than his questioners and jailers and the police officials who
booked him at New Britain, he spoke to only two people: Taborsky, of whom
he was afraid, and his own wife, who, by prearrangement with Lieutenant
Rome, asked him to tell the police the truth.87 The very duration of such a
detention distinguishes this case from those in which we have found to be
voluntary confessions given after several hours questioning or less on the day
of arrest. See Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96
L.Ed. 872; Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523;
Ashdown v. State of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443; cf.
Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. In
other cases, in which we have sustained convictions resting on confessions
made after prolonged detention, questioning of the defendant was sporadic, no
systematic,88 or had been discontinued during a considerable period prior to
confession,89 so that we did not find, in the circumstances there presented, that
police interrogators had overborne the accused.

70

The cases most closely comparable to the present one on their facts are Turner

v. Com. of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Johnson
v. Com. of Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640, and Fikes
v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Turner, like
Culombe, was arrested without a warrant and, without having been brought
before a magistrate, 90 was detained during four nights and about five days
before he confessed. Like Culombe, also, he was questioned in daylight and
evening hours, sometimes by one, sometimes by several officers. Turner saw
no visitors during his detention; Culombe saw only his wife, who gave him
scant support. It is true that Turner's interrogation amounted to a total of more
than twenty-three hours, as against the approximately twelve and one half
hours that Culombe was questioned prior to his first confession, and that Turner
was questioned on two days for as many as six hours (in two sessions, on each
occasion), while Culombe was never questioned for more than three hours on
any one day. It is true also that Turner's questioning involved only a single
crime, not several. But Turner was not a mental defective, as is Culombe, and
certain significant pressures brought to bear on Culombethe use of his
family, the intimidating effect of the New Britain Police Court hearingwere
absent in the Turner record. The Court held Turner's confession coerced.
71

Johnson, indicted as Turner's accomplice, was detained during approximately


the same period and under the same conditions as was Turner. He was
questioned, however, for only somewhat more than six hours over these five
days, never more than an hour and a half at a sitting. At least five officers
participated, at one time or another, in the questioning. At his separate trial,
both his own confession and Turner's were admitted. This Court reversed per
curiam.91

72

The facts on which the Court relied in Fikes were these. The defendant, a
twenty-seven-year-old Negro with a third-grade education, apparently
schizophrenic and highly suggestible, and who had previously been involved
with the law on only one occasion, was apprehended by private persons in a
white neighborhood in Selma, Alabama, at midnight on a Saturday. Jailed and
held by the police on open charges, he was questioned for four and a half or
five hours in two sessions on Sunday, and during the second of these sessions
he was driven around the city to the locations of several unsolved burglaries.
That day he talked to the sheriff of his home county, cale d to Selma at his
request. On Monday he talked to his employer. After two hours of questioning
in the morning he was taken to a state prison fifty-five miles from Selma and
eighty miles from his home, where he was questioned during several hours in
the afternoon and a short while in the evening. Thereafter, he was kept in a
segregation unit at the prison, where he saw only jailers and police officers. He
did not consult counsel, nor was he brought before a magistratedespite the

requirement of Alabama law that he be taken forthwith for a magistrate's


hearingprior to the time of his confession.
73

On Tuesday he was not questioned. On Wednesday he was questioned several


hours in the afternoon and into the evening. On Thursday the questioning
totaled three and a half hours in two sessions, and on that day his father, who
had come to the prison to see him, was turned away. Thursday evening his first
confession, consisting largely of yes-and-no answers to often leading or
suggestive questions by an examiner, was taken. Saturday he was questioned
again for three hours. A lawyer who came to the prison to see him was refused
admission. On Sunday, however, Fikes' father was permitted to see him. The
following Tuesday, after questioning of two and a half hours, he confessed a
second time. Both confessions were admitted in evidence at his trial.

74

This Court reversed Fikes' conviction. showed, as does Culombe's, only


intermittent showed, as does Ulombe's, only intermittent interrogation and no
total denial of friendly communication to the prisoner. It showed also, as does
the present record, a background atmosphere of community outrage but no
appreciable threat of lynch violence. Particularly significant, Fikes, like
Culombe, was suspected not of only one, but of a number of offenses under
investigation. Fikes, concededly, was removed to a prison located at a
considerable distance from his home, as Culombe was not. This is a factor to be
considered. But in Fikes that removal was purportedly and not unconvincingly
justified b concern for the prisoner's safety, compare Ward v. State of Texas,
316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, and was not, as such, a
predominant element in our decision.

75

We find that the present case is not less strong for reversal than Fikes v. State
of Alabama. Culombecertainly not a stronger man than Fikeswas
apparently never informed of his constitutional rights, as was Fikes.
Nevertheless, he expressly told the police that he wanted counsel, as Fikes did
not, and his request was in effect frustrated. We are told that this was because
Culombe did not know the name of any particular attorney and the police do
not regard it as an appropriate practice for them to suggest attorneys' names to
prisoners. However laudable this policy may be in the general run of things, it
manifests an excess of police delicacy when a totally illiterate man, detained at
police headquarters and suspected of many serious felonies, obviously needs a
lawyer and asks for one. In any event, in every county in Connecticut there is a
public defender.92

76

Moreover, Culombe was subjected to other pressures not brought to bear on


Fikes. By Lieutenant Rome's arrangement, Mrs. Culombe was permitted

indeed askedto confront her husband and tell him to confess. Culombe's
thirteen-year-old daughter was called upon in his presence to recount
incriminating circumstances. This may fall short of the crude chicanery of
employing persons intimate with an accused, to play on his emotions, that was
involved in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct.
1202, 3 L.Ed.2d 1265. But it appears, in conjunction with all of the other
circumstances, to have had precisely the effect that Rome, by his own
admission, calculated: 'it is another way of getting a confession.'93
77

What appears in this case, then, is this. Culombe was taken by the police and
held in the carefully controlled environment of police custody for more than
four days before he confessed. During that time he was questionedquestioned
every day about the Kurp's affirand with the avowed intention, not merely to
check his story to ascertain whether there was cause to charge him, but to
obtain a confession if a confession was obtainable.

78

All means found fit were employed to this end. Culombe was not told that he
had a right to remain silent. Although he said that he wanted a lawyer, the
police made no attempt to give him the help he needed to get one.94 Instead of
bringing him before a magistrate with reasonable promptness, as Connecticut
law requires, to be duly presented for the grave crimes of which he was in fact
suspected (and for which he had been arrested under the felony-arrest statute),
he was taken before the New Britain Police Court on the palpable ruse of a
breach-of-the-peace charge concocted to give the police time to pursue their
investigation. This device is admitted. It had a two-fold effect. First, it kept
Culombe in police hands without any of the protections that a proper
magistrate's hearing would have assured him. Certainly, had he been brought
before it charged with murder instead of an insignificant misdemeanor, no court
would have failed to warn Culombe of his rights and arrange for appointment of
counsel.95 Second, every circumstance of the Police Court's procedure was, in
itself, potentially intimidating. Culombe had been told that morning that he
would be presented in a court of law and would be able to consult counsel.
Instead, he was led into a crowded room, penned in a corner, and, without ever
being brought before the bench or given a chance to participate in any way, his
case was disposed of. Culombe had been convicted of crimes before and
presumably was not ignorant of the way in which justice is regularly done. It
would deny the impact of experience to believe that the impression which even
his limited mind drew from this appearance before a court which did not even
hear him, a court which may well have appeared a mere tool in the hands of the
police, was not intimidating.

79

That same evening, by arrangement of the State Police, Culombe's wife and

daughter appeared at Headquarters for the interview that left him sobbing in his
cell. The next morning, although the mittimus of the New Britain Police Court
had committed Culombe to the Hartford Jail until released by due course of
law, the police 'borrowed' him, and later the questioning resumed. There can be
no doubt of its purpose at this time. For Paige then 'knew'if he was ever to
knowthat Culombe was guilty.96 Paige opened by telling Culombe to stop
lying and to say instead that he did not want to answer. But when Culombe said
that he did not want to answer, Detective Murphy took over and repeated the
same questions that Paige had asked.
80

It is clear that this man's will was broken Wednesday afternoon. It is no less
clear that his will was broken Wednesday night when, after several hours in a
car with four policemen, two interviews with his wife and his apparently ill
child, further inquiries made of him in the presence of the Police
Commissioner, and a four-and-a-half-hour session which left him (by police
testimony) 'tired,' he agreed to the composition of a statement that was not even
cast in his own words. We do not overlook the fact that Culombe told his wife
at their apartment that he wanted to cleanse his conscience and make a clean
breast of things. This item, in the total context, does not overbalance the
significance of all else, particulr ly since it was his wife who the day before, at
the request of Lieutenant Rome, had asked him to confess.97 Neither the
Wednesday-afternoon nor the Wednesday-midnight statement may be proved
against Culombe, and he convicted by their use, consistently with the
Constitution.

VII.
81

Regardful as one must be of the problems of crime-detection confronting the


States, one does not reach the result here as an easy decision. In the case of
such unwitnessed crimes as the Kurp's killings, the trails of detection challenge
the most imaginative capacities of law enforcement officers. Often there is little
else the police can do than interrogate suspects as an indispensable part of
criminal investigation. But when interrogation of a prisoner is so long
continued, with such a purpose, and under such circumstances, as to make the
whole proceeding an effective instrument for extorting an unwilling admission
of guilt, due process precludes the use of the confession thus obtained. Under
our accusatorial system, such an exploitation of interrogation, whatever its
usefulness, is not a permissible substitute for judicial trial.

82

Reversed.

83

Mr. Chief Justice WARREN, concurring.

84

It has not been the custom of the Court, in deciding the cases which come
before it, to write lengthy and abstract dissertations upon questions which are
neither presented by the record nor necessary to a proper disposition of the
issues raised. The opinion which announces the judgment of the Court in the
instant case has departed from this custom and is in the nature of an advisory
opinion, for it attempts to resolve with finality many difficult problems which
are at best only tangentially involved here. The opinion was unquestionably
written with the intention of clarifying these problems and of establishing a set
of principles which could be easily applied in any coerced-confession situation.
However, it is doubtful that such will be the result, for while three members of
the Court agree to the general principles enunciated by the opinion, they
construe those principles as requiring a result in this case exactly the opposite
from that reached by the author of the opinion. This being true, it cannot be
assumed that the lower courts and law enforcement agencies will receive better
guidance from the treatise for which this case seems to have provided a vehicle.
On an abstract level, I find myself in agreement with some portions of the
opinion and in disagreement with other portions. However, I would prefer not to
write on many of the difficult questions which the opinion discusses until the
facts of a particular case make such writing necessary. In my view, the reasons
which have compelled the Court to develop the law on a case-by-case
approach, to declare legal principles only in the context of specific factual
situations, and to avoid expounding more than is necessary for the decision of a
given case are persuasive. See Alabama State Federation of Labor, etc. v.
McAdory, 325 U.S. 450, 461462, 65 S.Ct. 1384, 13891390, 89 L.Ed.
1725, and cases cited; Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752. I see no
reason for making an exception in this case, and I am therefore unable to join
the opinion which announces the judgment of the Court. Accordingly, I join the
separate concurring opinion of Mr. Justice BRENNAN.

85

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.

86

I find this case a simple one. As my Brother BRENNAN states, it is controlled


by many of our decisions concerning confessions unlawfully obtained. It is also
controlled by the principle some of us have urged upon the Court in several
prior cases, including Crooker v. State of California, 357 U.S. 433, 441, 78
S.Ct. 1287, 1292, 2 L.Ed.2d 1448 (dissenting opinion); Ashdown v. State of
Utah, 357 U.S. 426, 431, 78 S.Ct. 1354, 1357, 2 L.Ed.2d 1443 (dissenting
opinion); Cicenia v. Lagay, 357 U.S. 504, 511, 78 S.Ct. 1297, 1301, 2 L.Ed.2d
1523 (dissenting opinion); Spano v. People of State of New York, 360 U.S.
315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (concurring opinion).1 That
principle is that any accusedwhether rich or poorhas the right to consult a
lawyer before talking with the police; and if he makes the request for a lawyer

and it is refused, he is denied 'the Assistance of Counsel for his defence'


guaranteed by the Sixth and Fourteenth Amendments.
87

The police first descended on petitioner on a Saturday afternoon. By ten that


nightat the latesthe was in 'custody.' He asked to see an attorney. That
request was callously turned aside. The testimony of Officer Rome exposes the
critical issue in the case:

88

'Q. Up until Monday night Culombe hadn't seen a lawyer, had he? A. No, sir.

89

'Q. He had asked to see a lawyer, hadn't he? A. Yes, sir.

90

'Q. Didn't you tell him that he could see a lawyer when you got good and ready
to let him see him? A. No, sir.

91

'Q. Well, when he asked to see a lawyer did he see a lawyer? A. No, sir.

92

'Q. Did you allow him to go to a telephone to call a lawyer? A. There was a
telephone right there. He didn't have the name of an attorney to call.

93

'Q. Well, there are a large number of Hartford lawyers' names in the Hartford
telephone directory. A. Yes, sir.

94

'Q. Did you offer him the use of the directory to find out the name of a lawyer
to call? A. We were told that he couldn't read.

95

'Q. Oh, you were told that he couldn't read? A. Yes, sir.

96

'Q. Who told you that? A. He did.

97

'Q. Well, then, before I asked the question here in the courtroom, you had
information that he couldn't read? A. After I talked with him.

98

'Q. So, therefore, a telephone directory would have been of no use to him? That
is what you mean by the answer? A. If what he told me was the truth, yes, sir.

99

'Q. Did you tell him that he could have gotten in touch with Mr. Cosgrove, the
Public Defender for this court? A. I make it my business never to mention any
attorneys. It is up to them to mention their attorney.

100 'Q. This man was in the hands of the police on a serious investigation. He said
that he wanted a lawyer and you did nothing to help him? A. I told him he
could have a lawyer if he told me who he wanted me to call.
101 'Q. Did you tell him that? A. Yes, sir.
102 'Q. Didn't Culombe tell you on Monday night, 'If that is the way you operate up
here I want to get in touch with a lawyer,' and you replied, 'We will let you get
in touch with one at the right time, not until then.' A. No, sir.
103 'Q. But there was talk about a lawyer? A. Yes, sir.'
104 Petitioner is illiterate and mentally defectivea moron or an imbecile. He
spent six years in the third grade and left school at the age of sixteen. He has
twice been in state institutions for the feeble-minded.
105 He did not see an attorney until six days after he was first arrested and after he
had confessed to the police. During all this time the police questioned him until
their questioning produced the confession on which his present conviction is
based.
106 It is said that if we enforced the guarantee of counsel by allowing a person, wo
is arrested, to obtain legal advice before talking with the police, we 'would
effectively preclude police questioning' (Crooker v. State of California, supra,
357 U.S. 441, 78 S.Ct. 1292) and 'would constrict state police activities in a
manner that in many instances might impair their ability to solve difficult
cases.' Cicenia v. Lagay, supra, 357 U.S. 509, 78 S.Ct. 1300. It is said that 'any
lawyer worth his salt will tell the suspect in no uncertain terms to make no
statement to police under any circumstances.' Watts v. State of Indiana, 338
U.S. 49, 57, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (concurring opinion). In
other words, an attorney is likely to inform his client, clearly and
unequivocally, that 'No person * * * shall be compelled in any criminal case to
be a witness against himself,' as provided in the Fifth Amendment. This is the
'evil' to be feared from contact between a police suspect and his lawyer.
107 Interrogation of people by the police is an indispensable aspect of criminal
investigations. But there is no right to interrogateby the police any more than
by the courtswhen the privilege against self-incrimination is invoked.
Knowing this, the police have set up in its place a system of administrative
detention that has no constitutional justification. It is detention incommunicado,
a system which breeds oppression. See Haley v. State of Ohio, 332 U.S. 596, 68

S.Ct. 302, 92 L.Ed. 224. In the present case this illiterate petitioner was not
given the modicum of protection afforded in England where a prisoner is
warned that statements made may be used against him2 and where the police
are enjoined not to hammer away at a prisoner nor even to cross-examine him
when he makes a voluntary statement except to clear up ambiguities. See
Devlin, The Criminal Prosecution in England (1958), pp. 137141. The flow
of cases coming here shows that detention incommunicado is often
accompanied by illegality and brutality. The arrival of an attorney is a specific
against these proscribed practices.
108 If this accused were a son of a wealthy or prominent person, and demanded a
lawyer, can there be any doubt that his request would have been heeded? But
petitioner has no social status. He comes from a lowly environment. No class or
family is his ally. His helplessness before the police when he is without 'the
guiding hand of counsel' (Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct.
55, 64, 77 L.Ed. 158) emphasizes the lack of equal protection inherent in the
dwarfed and twisted construction we have given the constitutional guarantee of
the assistance of counsel. Cf. McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct.
413, 5 L.Ed.2d 445 (concurring opinion).
109 The system of police interrogation under secret detention falls heaviest on the
weak and illiteratethe least articulate segments of our society. See American
Civil Libet ies Union Report, Secret Detention by the Chicago Police (1959),
pp. 1921. The indigent who languishes in jail for want of bail, cf. Bandy v.
United States, 81 S.Ct. 197 (memorandum opinion), or the member of a
minority group without status or power3 is the one who suffers most when we
leave the constitutional right to counsel to the discretion of the police. That
right can only be protected by a broad guarantee of counsel that applies across
the board to rich and poor alike. See Reck v. Pate, 367 U.S. at page 444, 81
S.Ct. at page 1548 (concurring opinion).
110 I believe that the denial of petitioner's request that he be given the right of
counsel was a violation of his constitutional rights. I therefore concur in the
judgment of the Court reversing the conviction.
111 Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice
BLACK join, concurring in the result.
112 It is my view that the facts stated in Part V of the opinion of my Brother
FRANKFURTER require the conclusion that all and not alone the Wednesday
confessions were coerced from the petitioner, and that under our cases none is

admissible in evidence against him. See, e.g., Fikes v. State of Alabama, 352
U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, and cases there cited.
113 Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice
WHITTAKER join, dissenting.
114 I agree to what my Brother FRANKFURTER his written in delineation of the
general principles governing police interrogation of those suspected of, or under
investigation in connection with, the commission of crime, and as to the factors
which should guide federal judicial review of state action in this field. I think,
however, that upon this record, which contains few of the hallmarks usually
found in 'coerced confession' cases, such considerations find their proper
reflection in affirmance of this judgment.
115 With due regard to the medical and other evidence as to petitioner's history and
subnormal mentality, I am unable to consider that it was constitutionally
impermissible for the State to conclude that petitioner's 'Wednesday'
confessions were the product of a deliberate choice on his part to try to
ameliorate his fate by making a clean breast of things, and not the consequence
of improper police activity. To me, petitioner's supplemental confession on the
following Saturday night, which as depicted by the record bears all the indicia
of spontaneity, is especially persuasive against this Court's contrary view.
116 I should also add that I find no constitutional infirmity in the standards used by
the Connecticut courts in evaluating the voluntariness of petitioner's
confessions. Cf. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d
760.
117 I would affirm.

At the trial of petitioner and his co-defendant Taborsky for the killings at
Kurp's, no evidence of any importance was presented by the State that did not
derive, directly or indirectly, from the cn fessions and disclosures obtained
from the two men during February and March 1957.

It is significant that the proposal most frequently made with the object of
curbing third-degree methods by the police is the provision of some form of
preliminary judicial interrogation of persons accused of crime, in which
proceeding the privilege against self-incrimination is to be so far withdrawn as
to permit the prosecution, upon subsequent trial of the accused, to comment on

his refusal to answer questions. See IV National Commission on Law


Observance and Enforcement, Report No. 11, Lawlessness in Law Enforcement
(hereinafter IV Wickersham) (1931), 56; Kauper, Judicial Examination of
the AccusedA Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932);
Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24
J.Crim.L. & Criminology 1014 (1934); McCormick, Some Problems and
Developments in the Admissibility of Confessions, 24 Tex.L.Rev. 239, 277
(1946). Cf. Report of Committee on Lawless Enforcement of Law, Section of
Criminal Law and Criminology of the American Bar Assn., 1 Am.J.Pol.Sci.
(hereinafter ABA Committee Report) 575, 593 (1930). Underlying these
proposals is the recognition that some form of interrogation of criminal
suspects is necessary to effective law enforcement.
3

For the prevalence in this country of various methods of police pressuring


ranging from persistent questioning to beatings see, e.g., ABA Committee
Report, passim; IV Wickersham, passim; Booth, Confessions, and Methods
Employed in Procuring Them, 4 So.Calif.L.Rev. 83 (1930); Note, 43
Harv.L.Rev. 617 (1930); Hopkins, Our Lawless Police (1931), passim; Report
of the President's Committee on Civil Rights, To Secure These Rights (1947),
2527. See also authorities cited in note 5, infra. Although the third degree is,
in England, spoken of as the American practice, England herself is not free of
police interrogation and cross-questioning. Report of the Royal Commission of
Police Powers and Procedure (Cmd. 3297) (1929), 100 102; Preliminary
Investigations of Criminal Offences, A Report by Justice (1960), 910;
Williams, Questioning by the Police: Some Practical Considerations, (1960)
Crim.L.Rev. 325, 328331; Williams, Police Detention and Arrest Privileges
Under Foreign Law, England, 51 J.Crim.L., Criminology & Pol.Sci. 413
(1960). A Royal Commission is now engaged in a comprehensive inquiry
concerning the police which will, apparently, include study of police methods
insofar as these may relate to the control and administration of the police and
their relationship with the public. See the Commission's terms of reference,
Royal Commission on the Police 1960, Interim Report (Cmd. 1222) (1960), iv.

See, e.g., Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951);


Dienstein, Technics for the Crime Investigator (1952), 97115; Inbau and
Reid, Lie Detection and Criminal Interrogation (3d ed. 1953); O'Hara,
Fundamentals of Criminal Investigation (1956), 95126. Compare with the
highly sophisticated methods of police interrogation described in these volumes
Lord Brampton's address to Police Constables printed, in part, in Report of the
Royal Commission, supra, note 3, Appendix 8, at 147: 'Perhaps the best
maximum for a constable to bear in mind with respect to an accused person is,
'Keep your eyes and hour ears open, and your mouth shut." See also Regina v.
Male and Cooper, 17 Cox C.C. 689, 690.

American Civil Liberties Union, Illinois Division, Secret Detention by the


Chicago Police (1959); see also Foote, Law and Police Practice: Safeguards in
the Law of Arrest, 52 Nw.U.L.Rev. 16, 2027 (1957); Hall, The Law of Arrest
in Relation to Contemporary Social Problems, 3 U. of Chi.L.Rev. 345, 359
362 (1936); Hall, Police and Law in a Democratic Society, 28 Ind.L.J. 133, 154
(1953).

For a thorough discussion of the evils inherent in the detention of suspected


persons for interrogation, see Memorandum on the Detention of Arrested
Persons and Their Production Before a Committing Magistrate, Transmitted to
Sub-committee No. 2 of the Committee on the Judiciary of the House of
Representatives (1944), in Chafee, Documents on Fundamental Human Rights,
Pamphlets 13 (19511952), 483. Beyond the obvious, immediate
considerations concerning incarceration without judicial hearing, the threat of
the third degree, deprivation of counsel at a possibly critical period in the
criminal proceeding, etc., there lie other less evident but equally significant
menaces. There is the threat that a police system which has grown to rely too
heavily on interrogation will not pursue, or learn, other crime detection
methods, and the consequent danger that the police will feel themselves under
pressure to secure confessions. See IV Wickersham, at 187189; Glueck,
Crime and Justice (1936), 76. There is the danger that the police, by offending
canons of fairness regarded as fundamental by the people, will create an
atmosphere of public resentment to authority inimical to law enforcement. See
Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. of
Chi.L.Rev. 345, 373 (1936); Williams, Questioning by the Police: Some
Practical Considerations, (1960) Crim.L.Rev. 325, 337.

See IV Wickersham, at 174: 'But there is danger that the process of questioning
may develop into the third degree. Once the interrogation has begun, the police
or other officials are naturally reluctant to leave off until the desired
information has been obtained, regardless of the prisoner's fatigue or need of
sleep; and the baffled questioner, getting obstinate silence or evasive and
impudent replies, is easily tempted to eke out his unsuccessful questions by
threats or violence.'

There can be no doubt that the secrecy in which police-station interrogation is


usually carried out is a condition which encourages questioning to run over into
violence. See ABA Committee Report, at 587588; Hogan and Snee, The
McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1, 27
(1958); cf. IV Wickersham, at 31. Historically there has been intimate
connection between the use of torture and secret investigations. Filamor, Third
Degree Confession, 13 Bombay L.J. 339, 342 (1936).

See ABA Committee Report, at 579: '* * * (T)he prisoner knows that he is
wholly at the mercy of his inquisitor and that the severe cross-examination may
at any moment shift to a severe beating.'

10

See Report of the Royal Commission on Police Powers and Procedure (Cmd.
(1929), at 61: '* * * (P)ersons in custody * * * are from the nature of things at a
disadvantage because of their position. As one witness expressed it to us, 'the
whole of the influences around them appear to them to be hostile' and we think
that a right of asking questions in these circumstances is in itself a source of
danger. * * *'

11

O'Brien, J., dissenting, in Regina v. Johnston, 15 Irish Common Law Reports,


60, 87, 90 (Crim.App.): '* * * (I)t appears to me that answers given by a
prisoner to questions put to him by those in whose custody he is, respecting the
offence with which he is charged, cannot be regarded as voluntary statements,
except the prisoner be at the same time apprised that he is not obliged to answer
them, and that his answers may be given in evidence against him at his trial.
The very fact of these questions being put by such a person, unaccompanied by
any such caution, conveys to the prisoner's mind the idea of some obligation on
his part to answer them, and deprives the statement of that voluntary character
which is essential to its admissibility.' Cf. Cuthbert W. Pound, Inquisitorial
Confessions, 1 Cornell L.Q. 77, 80 (1916).

12

Cf. Wilde, C.J., in Regina v. Pettit, 4 Cox C.C. 164, 165: 'The law is so
extremely cautious in guarding against anything like torture, that it extends a
similar principle to every case where a man is not a free agent in meeting an
inquiry. If this sort of examination be admitted in evidence, it is hard to say
where it might stop. A person in custody, or in other imprisonment, questioned
by a magistrate, who has power to commit him and power to release him, might
think himself bound to answer for fear of being sent to gaol. The mind in such a
case would be likely to be affected by the very influences which render the
statements of accused persons inadmissible.' Cf. IV Wickersham, at 93.

13

Watts v. State of Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 93 L.Ed. 1801
(opinion of Frankfurter, J.).

14

Devlin, The Criminal Prosecution in England (1958), 58.

15

Jackson, J., dissenting in Ashcraft v. Tennessee, 322 U.S. 143, 156, 160, 64
S.Ct. 921, 927, 929, 88 L.Ed. 1192.

16

People v. Hall, 413 Ill. 615, 624, 110 N.E.2d 249, 254. See 3 Wigmore on
Evidence (3d ed. 1940), 851; Filamor, Third Degree Confession, 13 Bombay
L.J. 339, 347 (1936); Kidd, Police Interrogation (1940), 1315; Mulbar,

Interrogation (1951), 34; O'Hara, Fundamentals of Criminal Investigation


(1956), 810; Inbau and Reid, Lie Detection and Criminal Investigation (3d
ed. 1953), 195197.
17

State v. Smith, 32 N.J. 501, 534, 161 A.2d 520, 537. The need to permit police
interrogation of suspects in custody has been persistently asserted in this
country. See, e.g., H.R.Rep. No. 1815, 85th Cong., 2d Sess. 57 ('If the police
* * * are, in effect, prevented from conducting a proper and reasonable
interrogation of suspects, law enforcement is faced with a serious challenge.'
Id., at 5.); S.Rep. No. 1478, 85th Cong., 2d Sess. 7 11 ('We abhor * * * the idea
* * * that the police do not have the right to reasonably interrogate persons held
in custody prior to arraignment. This subcommittee believe that the police not
only have the right, but they have the duty to conduct reasonable interrogation
of persons charged with crime.' Id., at 11.); H.R.Rep. No. 352, 86th Cong., 1st
Sess. 4, 69 ('(T)o preclude police questioning would have a devastating effect
on the criminal law.' Id., at 4.); Admission of Evidence in Certain Cases,
Hearings before Subcommittee No. 2 of the Committee on the Judiciary, House
of Representatives, on H.R. 3690, 78th Cong., 1st Sess., Ser. No. 12, 110, 27
60; Supreme Court Decisions, Hearings before the Special Subcommittee to
Study Decisions of the Supreme Court of the United States, of the Committee
on the Judiciary, House of Representatives, 85th Cong., 2d Sess., Ser. No. 12,
pt. 1, 221, 30101, 157190; Admission of Evidence (Mallory Rule),
Hearings before the Subcommittee on Improvements in the Federal Criminal
Code of the Committee on the Judiciary, Senate, on H.R. 11477, S. 2970, S.
3325, S. 3355, 85th Cong., 2d Sess. 2245, 64 74, 128149, 160162;
Confessions and Police Detention, Hearings before the Subcommittee on
Constitutional Rights of the Committee on the Judiciary, Senate, 85th Cong.,
2d Sess. 28, 119141; 93 Cong.Rec. 1390; 105 Cong.Rec. 12863;
Wickersham, The Supreme Court and Federal Criminal Procedure, 44 Cornell
L.Q. 14, 1922 (1958); Inbau, The Confession Dilemma in the United States
Supreme Court, 43 Ill.L.Rev. 442 (1948); Inbau, Law and Police Practice:
Restrictions in the Law of Interrogation and Confessions, 52 Nw.U.L.Rev. 77,
8082 (1957); Hall, Police and Law in a Democratic Society, 28 Ind.L.J. 133,
176 (1953); cf. IV Wickersham, at 173 174. And see Williams, Questioning by
the Police: Some Practical Considerations, (1960) Crim.L.Rev. 325, 332334,
340341.

18

See Coakley, Law and Police Practice: Restrictions in the Law of Arrest, 52
Nw.U.L.Rev. 2, 810 (1957), criticizing as possibly too short, in some cases,
the twenty-four-hour maximum prehearing detention period provided by 11
of the Uniform Arrest Act. The Act is found in Warner, The Uniform Arrest
Act, 28 Va.L.Rev. 315, 343, 347 (1942).

19

See Mulbar, Interrogation (1951), 1819.

20

See Confessions and Police Detention, Hearings, supra, note 17, at 117118;
H.R.Rep. No. 352, 86th Cong., 1st Sess. 8. See also Kauper, Judicial
Examination of the AccusedA Remedy for the Third Degree, 30
Mich.L.Rev. 1224, 1247 (1932), suggesting that the presence of counsel would
be obstructive even at an interrogation where the accused was deprived of his
privilege against self-incrimination. It is significant that critics of French
criminal procedure attribute the presence of third-degree methods and extrajudicial police interrogation in France to the impediment to judicial inquisition
introduced by the law of 1897, giving suspects the right to be represented by
counsel before the juge d'instruction. Hamson, The Prosecution of the Accused
English and French Legal Methods, (1955) Crim.L.Rev. 272, 275276, 278;
Vu in, The Protection of the Accused in French Criminal Procedure, 5 Int'l &
Comp.L.Q. 1, 17 (1956).

21

These involve, as Sir Patrick Devlin put it, 'the recognition, by every system of
law in which the liberty of the subject is considered, that inquiry into crime
cannot be left simply to administrative discretion. In most systems it has been
found necessary to regulate, formally or informally, the power of interrogation.'
Devlin, The Criminal Prosecution in England (1958), 1314.

22

For the history of this episode in English judicial practice see 5 Holdsworth, A
History of English Law (1924), 184 196; Lowell, The Judicial Use of Torture,
11 Harv.L.Rev. 220, 290 (1897).

23

Patrick Henry, in 3 Elliot's Debates (2d ed. 1891), 447 448: '* * * What has
distinguished our ancestors?That they would not admit of tortures, or cruel
and barbarous punishment But (in the absence of a Bill of Rights) Congress
may introduce the practice of the civil law, in preference to that of the common
law. They may introduce the practice of France, Spain, and Germany of
torturing, to extort a confession of the crime. They will say that they might as
well draw examples from those countries as from Great Britain, and they will
tell you that there is such a necessity of strengthening the arm of government,
that they must have a criminal equity, and extort confession by torture, in order
to punish with still more relentless severity. We are then lost and undone.'

24

See Gilbert on Evidence (3d ed. 1769) 140: '* * * but then this Confession must
be voluntary and without Compulsion; for our Law in this differs from the Civil
Law, that it will not force any Man to accuse himself; and in this we do
certainly follow the Law of Nature, which commands every Man to endeavor
his own Preservation; and therefore Pain and Force may compel Men to confess
what is not the Truth of Facts, and consequently such extorted Confessions are

not to be depended on.' And see Brown v. Walker, 161 U.S. 591, 596597, 16
S.Ct. 644, 646647, 40 L.Ed. 819; 1 Cooley's Constitutional Limitations (8th
ed. 1927) 647648; cf. 2 Story on the Constitution (4th ed. 1873) 1788.
Of course, the continental countries which employ inquisitorial modes of
criminal procedure have themselves long ago given up reliance upon the
tortures which they once used to wring incriminating information out of the
accused and which were a salient feature of the inquisitorial system at the time
that the English definitely rejected it in the seventeenth century. For
descriptions of the development and modern character of the inquisitorial
method, see Keedy, The Preliminary Investigation of Crime in France, 88 U. of
Pa.L.Rev. 385, 692, 915 (1940); Garner, Criminal Procedure in France, 25 Yale
L.J. 255 (1916); Ploscowe, The Development of Present-Day Criminal
Procedures in Europe and America, 48 Harv.L.Rev. 433 (1935); Hamson, The
Prosecution of the AccusedEnglish and French Legal Methods, (1955)
Crim.L.Rev. 272; and see Vouin, Provisional Release in French Penal Law, 108
U. of Pa.L.Rev. 355 (1960). A description of the careful procedural safeguards
which the inquisitorial system now maintains is found in Vouin, The Protection
of the Accused in French Criminal Procedure, 5 Int'l & Comp.L.Q. 1 (1956),
and an interesting study of some of those safeguards in operation in a particular
case is Vouin, L'Affaire Drummond, (1955) Crim.L.Rev. 5.
25

Rex v. Rudd, 1 Cowp. 331, 334. See Ibrahim v. Rex, (1914) A.C. 599, 609
610 (P.C.) Wigmore, it is true, attributes to the English exclusionary rule the
sole purpose of assuring the reliability of evidence. See 3 Wigmore on
Evidence (3d ed. 1940) 815867. There can be no doubt, of course, that the
fear of false confessions played a large part in the adoption of the rule. See Rex
v. Warickshall, 1 Leach 298, 299300; 3 Russell on Crimes (6th ed. 1896)
478, n. (e). But it is equally clear that there soon mingled with this original and
at first exclusive impetus another independent and sufficient, although
historically diverse, reason for the rule: the conception that the use of extorted
confessions set at naught the underlying tenet of the accusatorial system, that
men might not be compelled to speak what would convict them. See Gilbert on
Evidence, quoted note 24, supra. Quite apart from testimonial unreliability,
where it appeared that coercion had been applied to extract extra-judicial
incriminating statements, the courts refused to be party to such proceedings.
Regina v. Jarvis, 10 Cox C.C. 574, 576 (Crim.App.); Regina v. Thompson,
(1893) 2 Q.B. 12, 1819 (Cr.Cas.Res.); Chalmers v. H. M. Advocate, (1954)
Sess.Cas. 66, 7879, 8182 (J.C.); O'Brien, J., dissenting in Regina v.
Johnston, 15 Irish Common Law Reports 60, 87, 88. Compare Bram v. United
States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568. And see
McCormick, The Scope of Privilege in the Law of Evidence, 16 Tex.L.Rev.
447, 451457 (1938); Smith, Public Interest and the Interests of the Accused

in the Criminal ProcessReflections of a Scottish Lawyer, 32 Tulane L.Rev.


349, 354355 (1958); Lowell, The Judicial Use of Torture, 11 Harv.L.Rev.
220, 290, 296 (1897). In this way, the conceptions underlying the rule
excluding coerced confessions and the privilege against self-incrimination have
become, to some extent, assimilated. See 1 Stephen, A History of the Criminal
Law of England (1883), 440; 1 Taylor on Evidence (12th ed. 1931) 556;
Fraenkel, From Suspicion to Accusation, 51 Yale L.J. 748, 753 (1942); Report
of the Royal Commission on Police Powers and Procedures (Cmd. 3297)
(1929) 24; IV Wickersham, at 2627. Our own decisions enforcing the Due
Process Clause of the Fourteenth Amendment have made clear that 'The aim of
the requirement of due process is not to exclude presumptively false evidence,
but to prevent fundamental unfairnes in the use of evidence, whether true or
false.' Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280,
290, 86 L.Ed. 166. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5
L.Ed.2d 760, and authorities cited therein. And see State v. Smith, 1960, 42
N.J. 501, 541544, 161 A.2d 520, 541543.
26

See McNabb v. United States, 318 U.S. 332, 342343, note 7, 63 S.Ct. 608,
613614, 87 L.Ed. 819. The most prevalent American provision is that
requiring judicial examination 'without unnecessary delay.' See, e.g., Fed.Rules
Crim.Proc. rule 5(a), 18 U.S.C.A.; Cal.Penal Code, 849; Ill.Rev.Stat.1959, c.
38, 660; N.Y.Code Crim.Proc. 165; American Law Institute, Code
Crim.Proc., 1931, 6, 35; and see 1 Alexander, The Law of Arrest (1949),
623633. Some jurisdictions fix specific periods of permissible preexamination detention. See Cal.Penal Code, 825 (without unnecessary delay;
two-day maximum); 544.170 Mo.Rev.Stat.1959, V.A.M.S. (twenty hours
unless prisoner charged and held by warrant); N.H.Rev.Stat.1955, 594:2,
594:19, 594:20, 594:22, 594:23 (four-hour detention without arrest in certain
cases; twenty-four hours after night arrest; examination without unreasonable
delay if arrest is by warrant; other arrests require prompt examination; twentyfour-hour maximum); R.I.Gen.Laws, 1956, 1271, 12713 (twohour detention without arrest in certain cases; twenty-four hours after arrest).
Judicial decisions as to what constitutes unnecessary or unreasonable delay,
under the pertinent statutes or at common law, are not wholly harmonious.
Compare Keefe v. Hart, 213 Mass. 476, 100 N.E. 558 (jury could find one and
a quarter hours unlawful), with Lynn v. Weaver, 251 Mich. 265, 231 N.W. 579
(four hours lawful); Madsen v. Hutchison, 49 Idaho 358, 290 P. 208 (five hours
unlawful as matter of law; no extenuating circumstances found), with Haggard
v. First Nat. Bank of Mandan, 72 N.D. 434, 8 N.W.2d 5 (jury can find five
hours lawful under circumstances); Dragna v. White, 45 Cal.2d 469, 473, 289
P.2d 428, 430 (dictum that less than two days may be unlawful under Cal.Penal
Code 825), with People v. Sewell, 95 Cal.App.2d 850, 856, 214 P.2d 113,
117 (suggestion that two-day detention is lawful under 825; no consideration

of circumstances). Cases can be found holding necessary or reasonable


relatively long periods of delay. E.g., People v. Kelly, 404 Ill. 281, 288, 89
N.E.2d 27, 3031, semble; Commonwealth v. Banuchi, 335 Mass. 649, 141
N.E.2d 835; Mulberry v. Fuellhart, 203 Pa. 573, 53 A. 504; Peloquin v. Hibner,
231 Wis. 77, 285 N.W. 380 (alternative holding); United States ex rel.
Goodchild v. Burke, 7 Cir., 245 F.2d 88 (Wisconsin law). But see Mallory v.
United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.
Outside the United States, too, legislation requiring that arrested persons be
brought before a magistrate within some fixed period of time is common,
although the period fixed varies from country to country. See, e.g., Criminal
Code of Canada, 438(2) (twenty-four hours whenever a justice is available
within twenty-four hours; if not, as soon thereafter as possible); Magistrates'
Courts Act, 1952, 15 & 16 Geo. VI & 1 Eliz. II, c. 55, 38 (police must release
on recognizance persons arrested without warrant who cannot practicably be
brought before a magistrate within twenty-four hours, unless the offense is
serious); Criminal Procedure (Scotland) Act, 1887, 50 & 51 Vict., c. 35, 17
(examination on declaration may be delayed forty-eight hours to permit person
arrested to secure counsel); compare the new French Code de Procedure
Penale, Arts. 63, 77, 154 (twenty-four-hour detentions for investigation in
certain cases). For discussion of such foreign regulations, see Working Papers E
through V, United Nations, 1958 Seminar on the Protection of Human Rights
in Criminal Law and Procedure, Baguio City, Philippines (1958), and the
Symposium: The Comparative Study of Conditional Release, 108 U. of
Pa.L.Rev. 290365 (1960).
In sum, it seems fair to say that there is unanimity for the proposition that
'Strict observance of some reasonably definite and rather short time-limit for
the detention of a prisoner after arrest without judicial sanction is vital to
personal liberty.' Statement by the Committee on the Bill of Rights of the
American Bar Assn., Submitted to Subcommittee No. 2 of the Committee on
the Judiciary, House of Representatives, in Chafee, Documents on Fundamental
Human Rights, Pamphlets 13 (19511952), 480. But there is wide
divergence of views concerning how definite is 'reasonably definite' and how
short is 'rather short.'
27

Instances of third-degree treatment of prisoners almost invariably occur during


the period between arrest and preliminary examination. IV Wickersham, at
169; Annual Report of the Committee on Criminal Courts, Law and Procedure
for 19271928 to the Association of the Bar of the City of New York, Year
Book, 1928, of the Assn. of the Bar, City of New York 235, 243, 253;
Leibowitz, Law and Police Practice: Safeguards in the Law of Interrogation and
Confessions, 52 Nw.U.L.Rev. 86, 87 (1957); Hall, The Law of Arrest in

Relation to Contemporary Social Problems, 3 U. of Chi.L.Rev. 345, 357


(1936).
28

E.g., Ill.Rev.Stat.1959, c. 38, 379 (penalizing assault and battery or


imprisonment by two or more persons for the purpose of obtaining
confessions); Ky.Rev.Stat.1960, 422.110 (penalizing attempts by persons
having custody of prisoners charged with crime to obtain incriminating
information by plying with questions, by threats or by other wrongful means;
confession so obtained made inadmissible in evidence).

29

E.g., Cal.Penal Code, 825 (attorneys permitted to see arrested persons;


officers neglecting or refusing to permit such visits are guilty of a misdemeanor
and civilly liable for statutory forfeiture); N.H.Rev.Stat.1955, 594:15,
594:16, 594:17 (relatives, friends and attorney to be notified of arrest and
permitted to see person arrested; violation of these provisions made criminal);
Vernon's Ann.Tex.Penal Code, Art. 1176 (makes it unlawful for persons having
prisoners in custody to prevent prisoners' consultation or communicai on with
counsel). For citation to statutes employing various approaches to elimination
of third-degree practices and the protection of prisoners' interests, see
McCormick, Some Problems and Developments in the Admissibility of
Confessions, 24 Tex.L.Rev. 239, 251254 (1946).

30

Under the inquisitorial system as it was practiced with systematized torture (the
system embodied, for example, in the French Ordinance of 1670), the rack was
applied to suspects in whose cases the preliminary examination had developed
indications of guilt sufficient to justify its use but insufficient to satisfy the
severe burden of proof necessary to conviction. See Lowell, The Judicial Use of
Torture, 11 Harv.L.Rev. 220, 224228 (1897).

31

The Indian Evidence Act, 1872. Section 25 excludes confessions made to a


police officer; 26 excludes confessions made by any person while in the
custody of a police officer, except in the immediate presence of a magistrate.
However, 27 provides that 'when any fact is deposed to as discovered in
consequence of information recev ed from a person accused of any offense, in
the custody of a police-officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.' Compare the bill, reported to have passed one
house of the California Legislature in 1929, set out in Booth, Confessions, and
Methods Employed in Procuring Them, 4 So.Calif.L.Rev. 83, 8485, n. 3a
(1930). And see the provision submitted without recommendation by the
Commission on Penal Procedure at the Sixth Congress of the International
Association of Democratic Lawyers, in Coe, Practices of Police and
Prosecution Prior to Trial, 17 Law.Guild Rev. 62, 64 (1957).

32

E.g., Ibrahim v. Rex (1914) A.C. 599 (P.C.); Regina v. May, 36 Cr.App.Rep.
91.

33

Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262;
Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343;
Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454. And see
Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 40 L.Ed. 1090;
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 157, 44 S.Ct. 54, 57, 68
L.Ed. 221.

34

Chalmers v. H.M. Advocate, (1954) Sess.Cas. 66 (J.C.). As expressed in the


opinion of the Lord Justice-General,
'* * * The theory of our law is that at the stage of initial investigation the police
may question any one with a view to acquiring information which may lead to
the detection of the criminal; but that, when the stage has been reached at
which suspicion, or more than suspicion, has in their view centred upon some
person as the likely perpetrator of the crime, further interrogation of that person
becomes very dangerous, and, if carried too far, e.g., to the point of extracting a
confession by what amounts to cross-examination, the evidence of that
confession will almost certainly be excluded.' Id., at 78.

35

United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48; cf. United
States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. And see Bram v.
United States, 168 U.S. 532, 558, 18 S.Ct. 183, 192, 42 L.Ed. 568; Ziang Sung
Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; McNabb v.
United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819.

36

Rex v. Thornton, 1 Mood. 27; Rex v. Gilham, 1 Mood. 186; Rex v. Voisin,
(1918) 1 K.B. 531 (Crim.App.); Regina v. Straffen, (1952) 2 Q.B. 911
(Crim.App.); and See Lambe's Case, 2 Leach 552, 554. Irish courts reach the
same result. Rex v. Gibney, Jebb's Res.Cas. 14; Regina v. Johnston, 15 Irish
Common Law Rep. 60 (Crim.App.). Several English decisions at the end of the
last century appeared to lay down a per se rule excluding confessions by
persons questioned in custody, see Regina v. Gavin, 15 Cox C.C.
656; Regina v. Male and Cooper, 17 Cox C.C. 689, but these cases have since
been laid to rest. Rex v. Best, (1909) 1 K.B. 692 (Crim.App.). Perhaps the best
statement of the current English law, subject to some qualification with respect
to the Judges' Rules, see text at notes 3947, infra, is that in Rex v. Voisin,
(1918) 1 K.B. 531, 539 (Crim.App.):
'* * * (T)he mere fact that a statement is made in answer to a question put by a
police constable is not in itself sufficient to make the statement inadmissible in

law. It may be, and often is, a ground for the judge in his discretion excluding
the evidence; but he should do so only if he thinks the statement was not a
volunary one * * *, or was an unguarded answer made under circumstances that
rendered it unreliable, or unfair for some reason to be allowed in evidence
against the prisoner.' See Ibrahim v. Rex, (1914) A.C. 599, 610614 (P.C.).
37

Boudreau v. Rex, (1949) 3 D.L.R. 81 (S.C.Can.); Rex v. Bellos, (1927) 3


D.L.R. 186 (S.C.Can.); Regina v. Day, 20 Ont. 209 (Q.B.); Regina v. Elliott, 31
Ont. 14 (D.C.). In Canada, as in England, however, trial judges exercise a broad
discretion to exclude confessions by prisoners in response to police questioning
where, under all the circumstances, admission of the confessin is deemed
unfair. See Rex v. Anderson, (1942) 3 D.L.R. 179 (C.A., B.C.). Compare Rex
v. Kooten, (1926) 4 D.L.R. 711 (K.B., Man.), with the Canadian cases cited in
notes 47 and 48, infra. And in both countries the heavy burden placed on the
Crown affirmatively to demonstrate the voluntariness of any offered statement
as a condition of its admissibility, Regina v. Thompson, (1893) 2 Q.B. 12
(Cr.Cas.Res.), often operates to exclude interrogated confessions. See, e.g., Rex
v. Chadwick, 24 Crim.App.Rep. 138 (Recorder erred in determining issue of
voluntariness on depositions; burden is on Crown affirmatively to show that
confession is voluntary); Rex v. Dick, (1947) 2 D.L.R. 213 (C.A., Ont.); Rex v.
Howlett, (1950) 2 D.L.R. 517 (C.A., Ont.). The Canadian law is discussed in
Kaufman, The Admissibility of Confessions in Criminal Matters (1960).

38

Alabama: Ingram v. State, 1949, 252 Ala. 497, 42 So.2d 36; Myhand v. State,
1953, 259 Ala. 415, 66 So.2d 544. Arizona: State v. Miller, 1945, 62 Ariz. 529,
158 P.2d 669; Hightower v. State, 1945, 62
Ariz. 351, 158 P.2d 156, semble; State v. Jordan, 1958, 83 Ariz. 248, 320 P.2d
446, semble. Arkansas: State v. Browning, 1944, 206 Ark. 791, 178 S.W.2d 77;
Moore v. State, 1958, 229 Ark. 335, 315 S.W.2d 907; and see Dorsey v. State,
1951, 219 Ark. 101, 240 S.W.2d 30. California: People v. Bashor, 1957, 48
Cal.2d 763, 312 P.2d 255; and see Rogers v. Superior Court, 1955, 46 Cal.2d 3,
291 P.2d 929. Colorado: Cahill v. People, 1943, 111 Colo. 29, 137 P.2d 673,
148 A.L.R. 536; Downey v. People, 1950, 121 Colo. 307, 215 P.2d 892; Leick
v. People, 1958, 136 Colo. 535, 322 P.2d 674. Connecticut: State v. Zukauskas,
1945, 132 Conn. 450, 45 A.2d 289; State v. Buteau, 1949, 136 Conn. 113, 68
A.2d 681; and see State v. Guastamachio, 1950, 137 Conn. 179, 75 A.2d 429.
Delaware: Garner v. State, 1958, 51 Del. 301, 145 A.2d 68. Florida: Graham v.
State, Fla.1956, 91 So.2d 662; Singer v. State, Fla.1959, 109 So.2d 7, 26; and
see Finley v. State, 1943, 153 Fla. 394, 14 So.2d 844; Rollins v. State, Fla.1949,
41 So.2d 885. Georgia: Bryant v. State, 1941, 191 Ga. 686, 13 S.E.2d 820;
1944, 197 Ga. 641, 30 S.E.2d 259; Russell v. State, 1943, 196 Ga. 275, 26
S.E.2d 528; and see Ferguson v. State, 1959, 215 Ga. 117, 109 S.E.2d 44,

reversed on other grounds 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. Hawaii:
Territory of Hawaii v. Young and Nozawa, 1945, 37 Haw. 189; Territory of
Hawaii v. Aquino, 1959, 43 Haw. 347. Idaho: State v. Behler, 1944, 65 Idaho
464, 146 P.2d 338, semble; and see State v. Johnson, 1953, 74 Idaho 269, 261
P.2d 638. Illinois: People v. Lazenby, 1949, 403 Ill. 95, 85 N.E.2d 660; People
v. Hall, 1953, 413 Ill. 615, 110 N.E.2d 249; Davies v. People, 1956, 10 Ill.2d
11, 139 N.E.2d 216; People v. Goard, 1957, 11 Ill.2d 495, 144 N.E.2d 603;
Napue v. People, 1958, 13 Ill.2d 566, 571, 150 N.E.2d 613, 616 (dictum),
reversed on other grounds 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; People
v. Miller, 1958, 13 Ill.2d 84, 148 N.E.2d 455; and see People v. Lettrich, 1952,
413 Ill. 172, 108 N.E.2d 488. Indiana: Krauss v. State, 1951, 229 Ind. 625, 100
N.E.2d 824; Pearman v. State, 1954, 233 Ind. 111, 117 N.E.2d 362; and see
Davis v. State, 1956, 235 Ind. 620, 137 N.E.2d 30. Iowa: State v. Williams,
1954, 245 Iowa 494, 62 N.W.2d 742; State v. Harriott, 1956, 248 Iowa 25, 79
N.W.2d 332; State v. Triplett, 1956, 248 Iowa 339, 79 N.W.2d 391. Kansas:
State v. Vargas, 1957, 180 Kan. 716, 308 P.2d 81;
and see State v. Smith, 1944, 158 Kan. 645, 149 P.2d 600. Kentucky:
Commonwealth v. Mayhew, 1943, 297 Ky. 172, 178 S.W.2d 928; Curtis v.
Commonwealth, 1949, 312 Ky. 205, 226 S.W.2d 753; Reed v. Commonwealth,
1949, 312 Ky. 214, 226 S.W.2d 513; Milam v. Commonwealth, Ky.1955, 275
S.W. 921; Karl v. Commonwealth, Ky.1956, 288 S.W.2d 628. Louisiana: State
v. Holmes, 1944, 205 La. 730, 18 So.2d 40; State v. Joseph, 1950, 217 La. 175,
46 So.2d 118; State v. Solomon, 1952, 222 La. 269, 62 So.2d 481; State v.
Weston, 1957, 232 La. 766, 95 So.2d 305; and see State v. Green, 1952, 221
La. 713, 60 So.2d 208. Maine:S tate v. Priest, 1918, 117 Me. 223, 103 A. 359.
Maryland: Cox v. State, 1949, 192 Md. 525, 64 A.2d 732; James v. State, 1949,
193 Md. 31, 65 A.2d 888; Merchant v. State, 1958, 217 Md. 61, 141 A.2d 487.
Massachusetts: Commonwealth v. Mabey, 1937, 299 Mass. 96, 12 N.E.2d 61;
Commonwealth v. Banuchi, 1957, 335 Mass. 649, 141 N.E.2d 835. Michigan:
People v. La Panne, 1931, 255 Mich. 38, 237 N.W. 38, semble; and see People
v. Hamilton, 1960, 359 Mich. 410, 416417, 102 N.W.2d 738. Minnesota:
State v. Schabert, 1946, 222 Minn. 261, 24 N.W.2d 846. Mississippi: Winston
v. State, 1950, 209 Miss. 799, 48 So.2d 513, semble; Crouse v. State, 1956, 229
Miss. 15, 89 So.2d 919, semble. Missouri: State v. Eillis, 1946, 354 Mo. 998,
193 S.W.2d 31, 37; State v. Francies, Mo.1956, 295 S.W.2d 8; State v. Smith,
Mo.1958, 310 S.W.2d 845; and see State v. Lee, 1950, 361 Mo. 163, 233
S.W.2d 666. Montana: State v. Dixson, 1927, 80 Mont. 181, 260 P. 138; State
v. Robuck, 1952, 126 Mont. 302, 248 P.2d 817. Nebraska: Kitts v. State, 1949,
151 Neb. 679, 39 N.W.2d 283; Gallegos v. State, 1950, 152 Neb. 831, 43
N.W.2d 1, affirmed 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Parker v. State,
1957, 164 Neb. 614, 83 N.W.2d 347. Nevada: State v. Boudreau, 1950, 67 Nev.
36, 214 P.2d 135; Ex parte Sefton, 1957, 73 Nev. 2, 306 P.2d 771. New

Hampshire: State v. Howard, 1845, 17 N.H. 171; and see State v. George, 1945,
93 N.H. 408, 43 A.2d 256. New Jersey: State v. Pierce, 1950, 4 N.J. 252, 72
A.2d 305; State v. Cooper, 1952, 10 N.J. 532, 92 A.2d 786; State v. Grillo,
1952, 11 N.J. 173, 93 A.2d 328; State v. Wise, 1955, 19 N.J. 59, 115 A.2d 62;
State v. Smith, 1960, 32 N.J. 501, 161 A.2d 520. New
Mexico: State v. Lindemuth, 1952, 56 N.M. 257, 243 P.2d 325; State v. Griego,
1956, 61 N.M. 42, 294 P.2d 282; State v. Padilla, 1959, 66 N.M. 289, 347 P.2d
312. New York: People v. Perez, 1949, 300 N.Y. 208, 90 N.E.2d 40; People v.
Spano, 1958, 4 N.Y.2d 256, 173 N.Y.S.2d 793, 150 N.E.2d 226, reversed 360
U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; People v. Vargas, 1960, 7 N.Y.2d
555, 200 N.Y.S.2d 29, 166 N.E.2d 831; and see People v. Alex, 1934, 265 N.Y.
192, 192 N.E. 289, 94 A.L.R. 1033; People v. Elmore, 1938, 277 N.Y. 397, 14
N.E.2d 451, 124 A.L.R. 465; People v. Lovello, 1956, 1 N.Y.2d 436, 154
N.Y.S.2d 8, 136 N.E.2d 483. But see People v. Di Biasi, 1960, 7 N.Y.2d 544,
200 N.Y.S.2d 21, 166 N.E.2d 825 (post-indictment). North Carolina: State v.
Brown, 1951, 233 N.C. 202, 63 S.E.2d 99; State v. Rogers, 1951, 233 N.C. 390,
64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 1960, 253 N.C. 86, 116
S.E.2d 365. North Dakota: State v. Nagel, 1947, 75 N.D. 495, 28 N.W.2d 665;
State of Braathen, 1950, 77 N.D. 309, 43 N.W.2d 202. Ohio: State v. Collett,
Ohio App.1944, 58 N.E.2d 417, appeal dismissed 1945, 144 Ohio St. 639, 60
N.E.2d 170; State v. Lowder, 1946, 79 Ohio App. 237, 72 N.E.2d 785, appeal
dismissed 1947, 147 Ohio St. 530, 72 N.E.2d 102. Oklahoma: Fry v. State,
1944, 78 Okl.Cr. 299, 147 P.2d 803; Hendrickson v. State, 1951, 93 Okl.Cr.
379, 229 P.2d 196; Thacker v. State, Okl.Cr. 1957, 309 P.2d 306; and see
Application of Fowler, Okl.Cr.1960, 356 P.2d 770, 778. Oregon: State v.
Folkes, 1944, 174 Or. 568, 150 P.2d 17; State v. Nunn, 1958, 212 Or. 546, 321
P.2d 356; and see State v. Leland, 1951, 190 Or. 598, 227 P.2d 785, affirmed
1952, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. Pennsylvania:
Commonwealth v. Agoston, 1950, 364 Pa. 464, 72 A.2d 575; Commonwealth
v. Bibalo, 1953, 375 Pa. 257, 100 A.2d 45; Commonwealth ex rel. Sleighter v.
Banmiller, 1958, 392 Pa. 133, 139 A.2d 918. Rhode Island: State v. Andrews,
1957, 86 R.I. 341, 134 A.2d 425. South Carolina: State v. Brown, 1948, 212
S.C. 237, 47 S.E.2d 521; State v. Bullock, 1959, 235 S.C. 356, 111 S.E.2d 657;
and see State v. Chasteen, 1955, 228 S.C. 88, 88 S.E.2d 880. South Dakota:
State v. Landers, 1908, 21 S.D. 606, 114 N.W. 717; State v. Nicholas, 1934, 62
S.D. 511, 253 N.W. 737, semble. Tennessee: Wynn v. State, 1944, 181 Tenn.
325, 181 S.W.2d 332; Ford v. State, 1945, 184 Tenn. 443, 201 S.W.2d 539;
Taylor v. State 1950, 191 Tenn. 670, 235 S.W.2d 818; and see McGhee v.
State, 1945, 183 Tenn. 20, 189 S.W.2d
826, 164 A.L.R. 617; Acklen v. State, 1954, 196 Tenn. 314, 267 S.W.2d 101.
Texas: Dimery v. State, 1951, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Leviness v.

State, 1952, 157 Tex.Cr.R. 160, 247 S.W.2d 115; Golemon v. State, 1952, 157
Tex.Cr.R. 534, 247 S.W.2d 119; LeFors v. State, 1954, 161 Tex.Cr.R. 544, 278
S.W.2d 837; Walker v. State, 1955, 162 Tex.Cr.R. 408, 286 S.W.2d 144;
Childress v. State, 1958, 166 Tex.Cr.R. 95, 312 S.W.2d 247. Utah: Mares v.
Hill, 1950, 118 Utah 484, 222 P.2d 811; and see State v. Gardner, 1951, 119
Utah 579, 230 P.2d 559; State v. Braasch, 1951, 119 Utah 450, 229 P.2d 289.
Vermont: State v. Blair, 1953, 118 Vt. 81, 99 A.2d 677; State v. Goyet, 1957,
120 Vt. 12, 132 A.2d 623. Virginia: James v. Commonwealth, 1951, 192 Va.
713, 66 S.E.2d 513; Campbell v. Commonwealth, 1953, 194 Va. 825, 75
S.E.2d 468; Mendoza v. Commonwealth, 1958, 199 Va. 961, 103 S.E.2d 1.
Washington: State v. Winters, 1951, 39 Wash.2d 545, 236 P.2d 1038; State v.
Johnson, 1959, 53 Wash.2d 666, 335 P.2d 809. West Virginia: State v. Digman,
1939, 121 W.Va. 499, 5 S.E.2d 113; State v. Bruner, 1958, 143 W.Va. 755, 105
S.E.2d 140; and see State v. Brady, 1927, 104 W.Va. 523, 140 S.E. 546.
Wisconsin: State v. Fransisco, 1950, 257 Wis. 247, 43 N.W.2d 38; Kiefer v.
State, 1950, 258 Wis. 47, 44 N.W.2d 537; State v. Babich, 1951, 258 Wis. 290,
45 N.W.2d 660; State v. Stortecky, 1956, 273 Wis. 362, 77 N.W.2d 721; State
v. Bronston, 1959, 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468. Wyoming:
Mortimore v. State, 1916, 24 Wyo. 452, 161 P. 766; State v. Lantzer, 1940, 55
Wyo. 230, 99 P.2d 73.
39

Regina v. Berriman, 6 Cox C.C. 388, 388389 ('I very much disapprove of
this proceeding. By the law of this country, no person ought to he (sic) made to
criminate himself, and no police officer has any right, until there is clear proof
of a crime having been committed, to put searching questions to a person for the
purpose of eliciting from him whether an offence has been perpetrated or not. If
there is evidence of an offence, a police officer is justified, after a proper
caution, in putting to a suspected person interrogatories with a view to
ascertaining whether nor not there are fair and reasonable grounds for
apprehending him. Even this course should be very sparingly resorted to. * * *
I wish it to go forth amongst those
who are inferior officers in the administration of justice, that such a practice is
entirely opposed to the spirit of our law.'); Regina v. Mick, 3 F. & F. 822, 823
('I entirely disapprove of the system of police officers examining prisoners. The
law has surrounded prisoners with great precautions to prevent confessions
being extorted from them, and the magistrates are not allowed to question
prisoners, or to ask them what they have to say; and it is not for policemen to
do these things. It is assuming the functions of the magistrate without those
precautions which the magistrates are required by the law to use, and assuming
functions which are entrusted to the magistrates and to them only.'); Regina v.
Reason, 12 Cox C.C. 228, 229 ('It is the duty of the police-constable to hear
what the prisoner has voluntarily to say, but after the prisoner is taken into

custody it is not the duty of the police-constable to ask questions.'); Regina v.


Cheverton, 2 F. & F. 833, 835; Regina v. Regan, 17 Law Times Rep.(N.S.) 325,
326.
40

The first four of the rules, drawn up by the judges of the King's Bench at the
request of the Home Secretary, were circulated in 1912. Their text is set forth in
Rex v. Voisin, (1918) 1 K.B. 531, 539, n. (3). A memorandum approved by the
judges in 1918 increased their number to nine. See 145 Law Times 389 (Sept.
28, 1918). Ambiguities in the rules were pointed out by a Royal Commission in
1929, see Report of the Royal Commission on Police Powers and Procedure
(Cmd. 3297) (1929) 6974, and in response to the Commission's observations
a clarifying circular was issued by the Home Office in 1930 with the approval
of the judges. See 6 Police Journal (1933) 342, 352356; 1 Taylor on
Evidence (12th ed. 1931) 557559. Further Home Office Circulars in 1947
and 1948 were approved by the Lord Chief Justice. For the text of the Rules
and Circulars as presently in operation, see 1 Stone's Justices' Mannual (92 ed.
1960) 353356. See also Devlin, The Criminal Prosecution in England (1958),
3842, 137141. The Home Secretary recently responded to Parliament that
he had been in touch with the Lord Chief Justice, who had agreed that the time
had come when it would be appropriate for the judges to carry out a review of
the scope and operation of the Judges' Rules, 636 H.C.Deb., Hansard, No. 75
(written answers) 145 (March 16, 1961).

41

The Rules, in pertinent part, are:


'(1) When a police officer is endeavouring to discover the author of a crime,
there is no objection to his putting questions in respect thereof to any person or
persons, whether suspected or not, from whom he thinks that useful information
can be obtained.
'(2) Whenever a police officer has made up his mind to charge a person with a
crime, he should first caution such person before asking any questions r any
further questions, as the case may be.
'(3) Persons in custody should not be questioned without the usual caution
being first administered.
'(4) If the prisoner wishes to volunteer any statement, the usual caution should
be administered * * *.
'(7) A prisoner making a voluntary statement must not be cross-examined, and
no questions should be put to him about it except for the purpose of removing
ambiguity in what he has actually said. For instance, if he has mentioned an
hour without saying whether it was morning or evening, or has given a day of

the week and day of the month which do not agree, or has not made it clear to
what individual or what place he intended to refer in some part of his statement,
he may be questioned sufficiently to clear up the point.
'(8) When two or more persons are charged with the same offence and
statements are taken separately from the persons charged, the
police should not read these statements to the other persons charged, but each
of such persons should be furnished by the police with a copy of such
statements and nothing should be said or done by the police to invite a reply. If
the person charged desires to make a statement in reply, the usual caution
should be administered.' These must be read in connection with the Home
Office Circular of 1930, which states:
'Rule 3 was never intended to encourage or authorize the questioning or crossexamination of a person in custody after he has been cautioned, on the subject
of the crime for which he is in custody, and long before this Rule was
formulated, and since, it has been the practice for the Judge not to allow any
answer to a question so improperly put to be given in evidence; but in some
cases it may be proper and necessary to put questions to a person in custody
after the caution has been administered. For instance, a person arrested for a
burglary may, before he is formally charged, say, 'I have hidden or thrown the
property away,' and after caution he would properly be asked, 'Where have you
hidden or thrown it?'; or a person, before he is formally charged as a habitual
criminal, is properly asked to give an account of what he has done since he last
came out of prison. Rule 3 is intended to apply to such cases and, so
understood, is not in conflict with and does not qualify Rule 7, which prohibits
any question upon a voluntary statement except such as is necessary to clear up
ambiguity.'
42

Regina v. Wattam, 36 Crim.App.Rep. 72, 77; Regina v. Straffen, (1952) 2 Q.B.


911, 914 (Crim.App.).

43

Ibid.; Rex v. May, 36 Crim.App.Rep. 91, 93; Rex v. Voisin, (1918) 1 K.B. 531,
539540; see 'Questioning an Accused Person,' 92 J.P. 743, 758 (1928);
Brownlie, Police Questioning, Custody and Caution, (1960) Crim.L.Rev. 298.

44

See Rex v. Dwyer, 23 Crim.App.Rep. 156; Regina v. Bass, 37 Crim.App.Rep.


51.

45

See Devlin, The Criminal Prosecution in England (1958), passim.

46

No doubt the Judges' Rules are sometimes broken, but the reported breaches
themselves seem relatively mildcompared with what is common American

police practiceso that even these appear to support the conclusion that, in the
large, the tenor of the Rules is that which prevails in practical operation among
the English constabulary. See the several articles composing the 'Special Issue
on Police Questioning,' (1960) Crim.L.Rev. 298356; Elliott, Book Review, 5
J.Soc.Public Teachers of Law (N.S.) 230 (1960).
The furor, both within and without Parliament, raised by an afternoon's
questioning of Miss Savidge, is illuminating. See Inquiry In Regard to the
Interrogation By the Police of Miss Savidge, Report of the Tribunal appointed
under the Tribunals of Inquiry (Evidence) Act, 1921 (Cmd. 3147) (1928); 217
H.C.Deb. 1216 1220, 13031339, 19211931 (5th ser. 1928). So is the
comment to which the English practice has sometimes given occasion. See,
e.g., Forsyth, The History of Lawyers (1875), 282, n. 1: 'Not long ago, at a trial
at the Central Criminal Court, a policeman was asked whether the prisoner had
not made a statement. He answered, 'No:h e was beginning to do so; but I knew
my duty better, and I prevented him."
47

See the 1905 decision, Rex v. Knight, 21 T.L.Rep. 310; and see Rex v. Kay, 11
B.C. 157.

48

Compare Rex v. Godwin, (1924) 2 D.L.R. 362 (K.B., N.B.), with Ibrahim v.
Rex, (1914) A.C. 599 (P.C.). And see Rex v. Pattison, 21 Cr.App.Rep. 139.

49

The Judges' Rules' requirement of a caution has been adopted, however, and
made a condition of admissibility of incriminating statements, by the Uniform
Code of Military Justice, 10 U.S.C. 831, 10 U.S.C.A. 831. The same
requirement, with certain exceptions, prevails by statute in Texas. Vernon's
Ann.Tex.Code Crim.Proc., Arts. 726, 727. Compare S. 3325, 85th Cong., 2d
Sess.

50

In McNabb, our decision turned on the failure of the arresting officers to


comply with procedures prescribed by federal statutes then in effect requiring
prompt production of persons arrested for preliminary examination. Compare
Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. The
Upshaw case and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1
L.Ed.2d 1479, carried the same exclusionary rule over in implementation of
Fed.Rules Crim.Proc., 5(a). Of course, our decision in United States v.
Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, makes clear that
confessions made during the period immediately following arrest and before
delay becomes unlawful are not to be excluded under the rule.

51

318 U.S. at pages 343344, 63 S.Ct. at page 614:


'* * * The awful instruments of the criminal law cannot be entrusted to a single

functionary. The complicated process of criminal justice is therefore divided


into different parts, responsibility for which is separately vested in the various
participants upon whom the criminal law relies for its vindication. Legislation *
* * requiring that the police must with reasonable promptness show legal cause
for detaining arrested persons, constitutes an important safeguardnot only in
assuring protection for the innocent but also in securing conviction of the guilty
by methods that commend themselves to a progressive and self-confident
society. For this procedural requirement checks resort to those reprehensible
practices known as the 'third degree' which, though universally rejected as
indefensible, still find their way into use. It aims to avoid all the evil
implications of secret interrogation of persons accused of crime. It reflects not a
sentimental but a sturdy view of law enforcement. It outlaws easy but selfdefeating ways in which brutality is substituted for brains as an instrument of
crime detection.' See notes 26, 27, supra.
52

Prior to McNabb, the rule prevailing in the federal courts made voluntariness
the test of admissibility. Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct.
1, 69 L.Ed. 131. See also Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42
L.Ed. 568.

53

See cases cited in note 38, supra. Alabama, Arizona, Arkansas, California,
Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas,
Louisiana (semble), Maryland, Massachusetts (semble), Mississippi, Missouri,
Nevada, New Jersey, New York, North Carolina (semble), North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania (no prompt-arraignment statute), Rhode
Island (semble), Tennessee (no prompt-arraignment statute), Texas, Utah,
Vermont (semble), Virginia, Washington and Wisconsin (semble) have
expressly rejected McNabb. Colorado appears clearly to reject it. Minnesota
also appears to reject it, the decision in State v. Schabert, 222 Minn. 261, 24
N.W.2d 846, qualifying whatever suggestion might have been inferred from the
opinion in the earlier appeal of the same case, 218 Minn. 1, 15 N.W.2d 585,
that McNabb would be followed. There is dictum in Kentucky suggesting that
protracted pre-arraignment delay would not eo ipso cause exclusion of a
confession. Reed v. Commonwealth, 1949, 312 Ky. 214, 218, 226 S.W.2d 513,
514515. Idaho, where State v. Johnson, 74 Idaho 269, 261 P.2d 638, limits
and in part overrules State v. Kotthoff, 67 Idaho 319, 177 P.2d 474 (a decision
whose reasoning seems in some respects similar to that of McNabb) must now
be regarded as uncommitted. The only State to follow McNabb is Michigan.
People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738.

54

Cf. Cicenia v. La Gay, 357 U.S. 504, 509, 78 S.Ct. 1297, 1300, 2 L.Ed.2d
1523:

'* * * On the one hand, it is indisputable that the right to counsel in criminal
cases has a high place in our scheme of procedural safeguards. On the other
hand, it can hardly be denied that adoption of petitioner's position (that any
state denial of a defendant's request to confer with counsel during police
questioning violates due process) would constrict state police activities in a
manner that in many instances might impair their ability to solve difficult cases.
A satisfactory formula for reconciling these competing concerns is not to be
found in any broad pronouncement that one must yield to the other in all
instances. Instead, * * * this Court, in judging whether state prosecutions meet
the requirements of due process, has sought to achieve a proper accommodation
by considering a defendant's lack of counsel one pertinent element in
determining from all the circumstances whether a conviction was attended by
fundamental unfairness.'
55

The record in this case does not make clear, as did that in Rogers v. Richmond,
365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, that the legal standard applied by
the trial judge in passing upon the admissibility of Culombe's confessions was,
under this Court's decisions, an impermissible one. In view of the disposition
which we make upon the facts of this case, viewed under the assumption that a
proper criterion of judgment was employed below, we need not further pursue
the inquiry whether the trial judge's standard satisfied the constitutional
requirements regarding coercion.

56

State v. Buteau, 136 Conn. 113, 116118, 68 A.2d 681, 682 683; State v.
Lorain, 141 Conn. 694, 699700, 109 A.2d 504, 506 507. And see State v.
McCarthy, 133 Conn. 171, 177, 49 A.2d 594, 596597.

57

Portions of the following statement of facts are based upon testimony


introduced into the record in the case of Taborsky, Culombe's co-defendant,
who was tried jointly with Culombe. Virtually all of the evidence concerning
Culombe's mental capacity was introduced, not at the time of the trial to the
court of the issue of coercion relevant to the admissibility of Culombe's
confessions, but at a later stage of the trial, in connection with Culombe's
defense of insanity. Since all of this evidence was in the record at the time that
the Supreme Court of Errors considered and rejected Culombe's federal claim
of coercion, and since the opinion of that court does not indicate that it
considered the material improperly before it as a matter of state procedure, we
need not now decide what effect such a ruling would have on the scope of our
review. Compare Blackburn v. State of Alabama, 361 U.S. 199, 209211, 80
S.Ct. 274, 281282, 4 L.Ed.2d 242.

58

Conn.Gen.Stat.1955 Supp., 195d, now Conn.Gen.Stat.1958, 649: '* * *


(M)embers of the state police department * * * shall arrest, without previous

complaint and warrant, any person who such officer has reasonable grounds to
believe has committed or is committing a felony. Any person so arrested shall
be presented with reasonable promptness before proper authority.'
59

'Q. All of the questioning of Culombe, from the time that he was taken into
custody was with the object in view of obtaining a confession if a confession
was obtainable, that is true, isn't it? A. That is correct.' (Cross-examination of
Sergeant Paige.)

60

'Q. You kept after him, to use very conservative words A. Yes, sir. Q. Until you
received the answers that you wanted? That's right, isn't it? A. No, sir. Until we
received the answers which we proved were correct. Q. The answers that you
wanted were admissions of guilt? You wanted those answers? A. No, sir, not if
he were not guilty. Q. You were bound and determined, weren't you,
Lieutenant, to get such answers? A. No, sir. Not if he were guilty. (Sic) We
wanted answers that we could prove were correct.' (Cross-examination of
Lieutenant Rome.)

61

'Q. Were they told of their rights, Constitutional rights? A. I didn't tell them. Q.
You didn't hear anyone else tell it to them? A. No, sir, not that I know of.'
(Cross-examination of Sergeant Paige.) It is unclear from the context of these
responses whether they are meant to refer to the whole of Culombe's period of
detention or only to Saturday afternoon.

62

Rome admitted that he might have told someone that he was taking a chance
presenting Culombe on a breach of the peace charge (there was a chance, he
said, as to whether or not the police presenting Culombe on a breach of the
peace), and that he had thanked the alternate prosecutor for coming down to
Hartford from New Britain on Sunday night at his request in connection with
this matter.

63

The testimony is Lieutenant Rome's.

64

'Q. You could have presented him on Monday, couldn't you? A. Yes, sir.
'Q. And you didn't do that? A. No, sir.
'Q. Why didn't you do it? * * *
'THE WINTESS: It wasn't in accordance with good investigation.
'Q. But it was in accordance with the Statute, wasn't it? A. Yes, sir.
'Q. With reasonable promptness to bring him before a proper authority? A.

Reasonable promptnessTuesday morning, yes. * * *


'Q. You didn't bring him before the Court on Monday? A. No, sir.
'Q. And with reasonable promptness, you could have, couldn't you? A. Yes, sir.
'Q. But you wanted to hold him and do some more grilling, didn't you?
'MR. BILL: Objection to the grilling.
'THE COURT: I will sustain it.
'Q. You wanted to interrogate him some more, didn't you? A. Yes, Mr. Burke.
'Q. And that is why you didn't bring him before the proper authorityyou
wanted some more time? A. Yes, Mr. Burke.' (Cross-examination of Lieutenant
Rome.)
65

The testimony is Lieutenant Rome's.

66

The Superior Court ruled that this borrowing was illegal under Connecticut
law; the Supreme Court of Errors found it unnecessary to pass on the point.

67

Culombe requested that Mr. Bill, the State's Attorney, be told what he was
doing, that he was cooperating. He said that he wanted Mr. Bill to see the
statements that he made. The officers seem to have told Culombe that Mr. Bill
would be notified of his cooperation but, in fact, Mr. Bill was never so notified.

68

Culombe testified that his five-year-old daughter, who was present in the room,
appeared sick to him at that time. The officers testified that they did not notice
any illness in the child and that Culombe had expressed no apprehension
concerning her health, but it is undisputed that the little girl had to be taken to a
hospital that night with mumps.

69

Because the Wednesday-midnight confession also contained references to


another criminal offense, it was not physically offered in evidence at the trial.
Counsel for the State and for the defense stipulated that another document, a
substantially verbatim copy of the Kurp's portion of the confession, might be
substituted for it. This was the so-called Monday confession. It was a paper
prepared by the police from the Wednesday-midnight statement which was
read to, and signed by, Culombe the following Monday. Notwithstanding the
stipulation, the prosecution laid a foundation for the introduction as an exhibit
of the Monday confession by offering testimony before the jury, first, that
Culombe had made a statement Wednesday night; second, that it had been

committed to writing; and third, that this writing was substantially identical to
the typed paper which Culombe signed on Monday (witnesses on the stand
examined and compared the documents). The Monday confession was then
submitted to the jury. Under these circumstances, the effective use of the
Wednesday-midnight statement was much the same as if it had gone physically
to the jury, and for purposes of the constitutional issue presented here we may
treat the Wednesday-midnight confession as put in evidence. See Malinski v.
People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029.
70

As measured on the full scale Wechsler-Bellevue test. The normal intelligence


quotient on this scale is ninety to one hundred and ten.

71

Culombe can read and write only his name.

72

Again, this is the most favorable diagnosis of Culombe's capacity in this regard.
The report of a clinical psychologist appointed by the court to examine
Culombe both for the State and for the defense states: 'In addition to being
saddled with deficient mental equipment with which he must try to cope with
life's problems, Mr. C. is also possessed of that character defect so frequently
found in individuals of low intellectual calibre: he is enormously suggestible.
Thus, lacking in the capacity for sufficient critical judgment, his manner of
thinking, his pattern of living and his way of behaving can all easily be
influenced by those persons closest to him. * * *'

73

Timely question was raised at trial concerning the voluntariness of each of


Culombe's Wednesday confessions, and both were found voluntary by the
Connecticut court. The petition for certiorari in this Court adverts among the
questions presented only to the written, Wednesday-midnight confession.
However, in view of the intimate connection between the afternoon and
midnight confessions, we regard the petition as fairly comprising a claim that
the oral confession, as well, is unconstitutionally tainted by coercion.

74

Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; cf.
Ward c. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. And see
Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223,
100 L.Ed. 126.

75

Cf. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89
L.Ed. 1029. And see Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92
L.Ed. 330.

76

White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Vernon v.
State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513.

77

Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663.

78

Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed.
1029; Lomax v. State of Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511.

79

Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Leyra
v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.

80

Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.

81

Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Payne
v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.

82

Cf. Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863.

83

Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192
(relay questioning for more than thirty-six hours with one five-minute pause);
Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (relay
questioning from 11:30 p.m. to 2:30 or 3 a.m. on the first day of detention and
from 5:30 p.m. to 3 a.m. on four of the five succeeding days); Harris v. State of
South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (relay questioning in
a hot cubicle throughout one evening and during eleven and a half hours, with a
one-hour respite, the next day; then, on the day following, more than a halfdozen hours of questioning before the confession was made); Leyra v. Denno,
347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (questioning throughout afternoon
and evening on the first day; 10 a.m. to midnight on the second; then from 9
a.m. on the third until 8:30 a.m. on the morning of the fourth, with the
questioning later resuming, after a brief recess, until Leyra confessed). Cf.
Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. But see
Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed.
166.

84

See also Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3
L.Ed.2d 1265.

85

The defendant Stein, like Cooper, was 'an experienced criminal. * * * These
men were not young, soft, ignorant or timid.' 346 U.S. at page 185, 73 S.Ct. at
page 1093. Although Culombe, too, has had considerable criminal experience,
its value to him, as a school for toughening his resistance, must be duly
discounted in light of his subnormal mental capacities. The testimony of a
psychiatric expert for the prosecution is that 'as a mental defective he is
suggestible. I don't think that he is a fearful man. I think that he can be
intimidated, and to use his own expression 'I don't have the Moxie that someone
else has.' . . . He is suggestible and he can be intimidated. . . . I would say this

with benevolent influences, he gets along, as I said he did in the last three and a
half years. With sufficiently intimidating malignant influences, he doesn't.'
86

Compare Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d
863 (confession before justice of the peace at preliminary hearing on morning
following afternoon of defendant's arrest; defendant warned of his rights to
counsel and to plead not guilty); Ashdown v. State of Utah, 357 U.S. 426, 78
S.Ct. 1354, 2 L.Ed.2d 1443 (defendant cautioned that she can refuse to answer
and can consult with counsel); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97
L.Ed. 469 (defendant repeatedly warned that he can remain silent and have
assistance of counsel; whenever defendant told police that he wanted to stop the
conversation his request was respected and he was returned to jail).

87

Compare Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (defendant
saw counsel and at least two friends during detention, one of whom was located
by police at his request; it is true that one of these friends appears to have been
cooperating with the police in certain regards, but there is no indication that she
attempted to persuade the prisoner to confess); Lyons v. State of Oklahoma,
322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (defendant's wife and family
visited him in jail).

88

In Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, the
defendant was arrested in Texas by Texas authorities and, when questioned,
gave a false name. He was held in custody and again questionedafter
intervals first of twenty-one, then of forty-eight hoursfor the purpose of
establishing his identity. On the second occasion, he gave his name and
admitted that he had been in Nebraska. On the following day, he confessed to a
crime committed in that State. He was removed to Nebraska and during his first
questioning by Nebraska officers, a week after his Texas confession, he again
confessed. No claim of coercion was pressed in this Court in Gallegos, counsel
for the petitioner relying on the fact of illegally prolonged detention without
preliminary examination and before appointment of counsel. In Lyons v. State
of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, the defendant was
questioned for two hours on the day of his arrest, then remained in jail (where
his family visited him) for eleven days. At the end of this period he was
subjected to one prolonged, night-long interrogation session under intimidating
circumstances and he confessed. This confession was not offered in evidence,
having concededly been coerced. He confessed again the same evening, after
he had been taken to the state penitentiary and delivered into custody of the
warden; and the question raised was whether the coercive influences attending
the initial confession also infected the later one. The whole pattern of factors in
Lyons was different from that of the present case and involved wholly different
considerations. Cf. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91

L.Ed. 1654. And see Wilson v. State of Louisiana, 341 U.S. 901, 71 S.Ct. 611,
95 L.Ed. 1341 (defendat had been interrogated during four or five hours
following his arrest and confessed; two days later he was asked to repeat his
story and he again confessed, there being no indication in the record that he
was questioned on the second occasion).
89

In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the defendant had
been arrested on Monday, twice questioned for an hour or two on that day, and
questioned daily for a couple of hours on Tuesday and Wednesday. On
Thursday he was confronted by witnesses and, after they had related certain
information, he was asked whether he had any questions to ask them. On each
occasion he was warned that he need make no statement and that he had a right
to the assistance of counsel before he made any statement. He was not again
interviewed until the following Saturday, when the charges against him were
read to him, he was asked if he wanted to make a statement, andwithout
questioninghe confessed. See also note 87, supra.

90

Culombe's appearance before the New Britain Police Court, whether or not it
legitimated his detention under Connecticut law, hardly afforded him the
protection of a preliminary examination with respect to the felonies of which he
was suspected. See 367 U.S. at page 632, 81 S.Ct. at page 1895, infra.

91

Without entering into further discussion of this admittedly not unambiguous


decision, one may draw from it, at the least, a reaffirmance of what was
decided in Turner.

92

Conn.Gen.Stat.1949, 8796, now Conn.Gen.Stat.1958, 54 80.

93

We have duly taken into account, in this regard, the finding by the Connecticut
Superior Court: 'Nothing was said or done by the police to Mrs. u lombe or the
children to cause anxiety on the part of Culombe or to reduce his resistance or
will power, or to influence him to confess.' Whatever was done to Mrs.
Culombe, it is what was done with her, and with her daughter, that is
singificant. To the extent that this finding can be readas we think it cannot
to mean that no use was made of Culombe's family which in fact reduced his
resistance, such a finding would lack support in evidence. Thompson v. City of
Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. It is the uncontroverted
testimony of both Rome and Paige that Culombe was upset by his wife's visit
of Tuesday night, and Paige testified that Culombe thereafter choked up or
sobbed.

94

We do not ignore that Culombe never repeated his request for a lawyer after
Saturday night. In view of its frustration at that time, this is not surprising.
Lieutenant Rome told him on Tuesday morning that he would have a chance to

consult counsel at courta promise that was not made good.


It is also true that Culombe several times saw his wife, at home and at State
Police Headquarters, and that he did not request that she secure an attorney for
him. Under the stressing circumstances of these meetings, such reserve of
thought can hardly have been expected. Culombe's own explanation for his
failure to make this request of his wife is that which the circumstances, even
without his testimony, compel: 'I didn't ask her. I didn't even think of it, to
begin with * * *. How could you, with all this pressure? You don't even know
what day it is half the time.'
95

In Rex v. Dick, (1947) 2 D.L.R. 213, certain statements made by a prisoner


who had been charged with vagrancy, cautioned concerning that offense (or not
at all), and then questioned with the purpose of eliciting n formation about the
murder of which she was suspected, were held inadmissible as involuntary.
Robertson, C.J.O., said, at 225:
'* * * It seems to me to be an abuse of the process of the criminal law to use the
purely formal charge of a trifling offence upon which there is no real intention
to proceed, as a cover for putting the person charged under arrest, and obtaining
from that person incriminating statements, not in relation to the charge laid and
made the subject of a caution, but in relation to a more serious and altogether
different offence: * * * It is trifling with the long-established maxim nemo
tenetur seipsum accusare, and has more than the mere appearancebut, in the
intended result it has at times the effectof a trial by the police in camera
before even the charge has been laid.'

96

On the basis of the following testimony by Sergeant Paige on crossexamination, it would be difficult to regard Wednesday's questioning of
Culombe as anything other than a pile-driving effort to force his conviction
from his own lips:
'Q. How long did he continue to say that? A. Well, I started talking to him at
one-thirty and it was just a short while afterwards that I took this piece of paper
with all the different crimes on it and asked him these questions. Murphy came
in and repeated the same thing and we were out of the barracks by half past
three that afternoon.
'Q. Well, how long did he keep that upsaying he didn't want to talk about it?
A. Everytime we would ask him a question and ask him if he was there and he
would say he didn't want to talk about it.
'Q. How long a period of time did that take to give that answer? A. What
answer?

'Q. 'I don't want to talk about it'? A. Three quarters of an hour.
'Q. And he had been doing that in addition to denying it for days up to that
point, hadn't he? A. Well, that wasn't a denial, Mr. McDonough.
'Q. Well, he said he had nothing to do with them, didn't he? A. No, he said
rather than liehe said 'I don't want to talk about it,' which was telling me that
he was involved in the crimes.
'Q. That was your conclusion? A. That was the conclusion between us.
'Q. He never said any such thing that you just saidthat is a conclusion of
yoursthat is what you are assuming? A. That is what I knew.
'Q. That is what you knew he was involved inhe didn't tell you he was
involved in any of those crimes? A. But I knew that was the answer without his
actually saying yes.
'Q. Isn't that an assumption you drew? A. That was the knowledge I received
from his acts.
'Q. That is what you drew? A. Yes.'
97

We accord small weight, also, to the fact that on Thursday, when Culombe was
presented in the Superior Court for murder, he told the presiding judge that he
wanted to cooperate with the police and was willing to be released into their
custody. Of course, if Culombe's sole claim of coercion were that he had been
physically abused at State Police Headquarters, such behavior on his part might
ground a reasonable inference that assertions of brutality were not credible. But
the pressures of which he complains, and in which we sustain him, are of a
subtler sort, and nothing in his willingness to 'cooperate'on the day after he
signed a series of confessionsis inconsistent with the conclusion that those
pressures broke his resistance.

Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; In re Groban, 352
U.S. 330, 337, 77 S.Ct. 510, 515, 1 L.Ed.2d 376, (dissenting opinion);
Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 298, 79 S.Ct. 1157, 1163, 3
L.Ed.2d 1234 (dissenting opinion).

'The form of caution expresses two things. First, there is the reminder that the
accused is not obliged to talk: secondly, there is the warning that, if he does
talk, what he says will be taken down in writing and may be given in evidence.
From the lawyer's point of view both are statements of the obvious. Just as an
accused or suspect is never obliged to talk, so the police are always at liberty to

take down what an accused or suspect says and give it in evidence. The real
significance of the caution is that it is, so to speak, a declaration of war. By it
the police announce that they are no longer representing themselves to the man
they are questioning as the neutral inquirer whom the good citizen ought to
assist; they are the prosecution and are without right, legal or moral, to further
help from the accused; no man, innocent or guilty, need thereafter reproach
himself for keeping silent, for that is what they have just told him he may do.
The caution, the charge, the arrestany of these three things show that
hostilities have begun and that the suspect has formally become the accused.'
Devlin, The Criminal Prosecution in England (1958), pp. 3637.
3

'Police officers are charged with the fair and impartial administration of the
law. Yet, in many localities, there are sharp and shocking contrasts in the kind
of 'law' administered to different groups of citizens. * * * (P)eople lacking
special status or 'pull' may be pushed around, roughed up, arrested on vague and
even false charges, and treated generally as second-class citizens. This is
especially true of dwellers in slum areas with high crime ratesand even more
especially of poverty-ridden Negroes and other minority groupswhere police
raids on tenement homes are sometimes made on slight suspicion without the
benefit of search warrants.' Deutsch, The Trouble with Cops (1955), p. 63.